Citation Nr: 1103651 Decision Date: 01/28/11 Archive Date: 02/08/11 DOCKET NO. 06-01 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a separate disability rating for the neurologic residual of bowel incontinence associated with service-connected lumbar spine disability. 2. Entitlement to service connection for cervical radiculopathy secondary to facet syndrome with sclerosis, lumbosacral spine. ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran had active service from December 1968 to December 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In December 2008, the Board granted an increased evaluation to 60 percent for facet syndrome with sclerosis, lumbosacral spine; denied entitlement to service connection for cervical radiculopathy secondary to facet syndrome with sclerosis, lumbosacral spine; denied entitlement to service connection for a left knee condition secondary to facet syndrome with sclerosis, lumbosacral spine; assigned separate 10 percent evaluations for mild incomplete paralysis of the sciatic nerve of the right and left lower extremities; and remanded the issue of entitlement to a total disability rating based on unemployability (TDIU) due to service-connected disabilities. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties filed a Joint Motion for Partial Remand and requested an order vacating and remanding that portion of the Board's decision which (1) denied, sub silentio, entitlement to a separate disability rating for the neurologic residual of bowel incontinence attributable to service-connected lumbar spine disability; and (2) entitlement to service connection for cervical radiculopathy secondary to facet syndrome with sclerosis, lumbosacral spine. The parties noted that the claim of entitlement to service connection for a left knee condition was withdrawn. The parties also requested that the Court leave undisturbed that portion of the Board's decision assigning a 60 percent rating for lumbar spine disability, as well as the Board's assignment of separate 10 percent evaluations for sciatic nerve paralysis of the right and left lower extremities. In November 2009, the Court ordered that the motion for remand was granted and that part of the Board's decision that denied entitlement to: (1) a separate disability rating for the neurologic residual of bowel incontinence attributable to service-connected lumbar spine disability; and (2) service connection for cervical radiculopathy secondary to facet syndrome with sclerosis, lumbosacral spine was remanded for compliance with instructions in the joint motion. The appeal as to the remaining issues was dismissed. In April 2010, the RO granted entitlement to TDIU effective September 3, 2003. As this issue has been resolved, it is no longer for consideration by the Board. The Board acknowledges that additional evidence, to include a March 2009 VA examination, has been added to the record since the most recent supplemental statement of the case. In light of the favorable decision to grant a separate rating for bowel incontinence, a remand to have the RO furnish additional supplemental statement of the case would serve no useful purpose. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). In May 2010, the private attorney of record indicated that he was withdrawing his representation of the Veteran. The motion to withdraw was subsequently granted and in October 2010, the Board sent the Veteran a letter indicating that it could no longer recognize the attorney as his representative and that he had the opportunity to authorize another organization or person to represent him. In response, the Veteran submitted a pro se election form, indicating he wished to represent himself. The issue of entitlement to service connection for cervical radiculopathy secondary to facet syndrome with sclerosis, lumbosacral spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT Resolving reasonable doubt in the Veteran's favor, the neurologic manifestations of the service-connected low back disability include bowel incontinence approximating constant slight or occasional moderate leakage. CONCLUSION OF LAW A 10 percent evaluation is warranted for bowel incontinence associated with service-connected lumbar spine disability. 38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, General Rating Formula for Rating Diseases and Injuries of the Spine, Note (1), 4.114, Diagnostic Code 7332 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As discussed below, a separate rating is being assigned for bowel incontinence. Notwithstanding, in the absence of a total rating, a VCAA discussion is warranted. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case or supplemental statement of the case. Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006). In January 2007, VA notified the Veteran of the information and evidence needed to substantiate his claim for increase and of his and VA's respective obligations with regard to obtaining evidence. He was also provided information regarding how VA assigns disability ratings and effective dates. In June 2008, VA provided additional information on disability ratings and set forth the rating criteria pertaining to the spine. The claim was most recently readjudicated in the June 2008 supplemental statement of the case. Under the VCAA, VA also has a duty to assist the Veteran in the development of a claim. This includes assisting with procuring relevant records and providing a VA examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The claims file contains VA medical records, private medical records, and Social Security Administration records. The Veteran has not identified additional relevant records that need to be obtained with regard to the issue decided herein. The Veteran was provided VA examinations and medical opinions were obtained. As there is no evidence that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Analysis The Veteran seeks a separate disability rating for bowel incontinence. The Veteran is currently service-connected for a lumbar spine disability. Pursuant to regulation, any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Pursuant to the joint remand, the parties agreed that the Board failed to provide an adequate statement of reasons or bases with regard to whether the Veteran was entitled to a separate disability rating for bowel incontinence, identified as a neurologic abnormality secondary to his low back disability and that the Board provided no discussion of the potential assignment of a separate disability rating under Diagnostic Code 7332. Under this provision, impairment of sphincter control is evaluated as follows: healed or slight, without leakage (0 percent); constant slight, or occasional moderate leakage (10 percent); occasional involuntary bowel movements, necessitating wearing of pad (30 percent); extensive leakage and fairly frequent involuntary bowel movements (60 percent); and complete loss of sphincter control (100 percent). 38 C.F.R. § 4.114, Diagnostic Code 7332. The parties noted that medical evidence of record directly related the Veteran's neurologic abnormalities, to include rectal incontinence, to his lumbar spine disability. Specifically, a February 2005 examination report from the Veteran's private neurologist and two VA addendums from Dr. C.M. To the extent that the Board based its implicit denial of a separate disability rating for bowel incontinence on the March 2008 nurse practitioner opinion, the parties agreed that the Board's reliance was not supported by adequate reasons or bases and requires remand. The parties argued that the Board found the nurse practitioner opinion sufficient to deny entitlement to a separate disability rating for bowel incontinence, but not for paralysis of the lower extremities. In February 2005, the Veteran underwent a private neurology consultation to obtain a second opinion regarding questionable multiple sclerosis. At that time, he reported numerous symptoms, including that he began to experience episodes of fecal incontinence in 1995 and that the problem worsened about 5 or 6 months ago. The examiner noted a history of low back surgery in 1996 and cervical spine surgeries in 2003 and 2004. Impression was that the clinical picture was consistent with cervical myelopathy and the cause was unclear. The physician stated that it was certainly possible that the symptoms and signs observed today are the residue of the disc lesions and/or the two surgical procedures. The other possibility was that there was another myelopathy-causing process which co-existed with the cervical disc lesions. On VA examination in December 2007, the Veteran reported rectal incontinence weekly for the last 12 months and that he wears a diaper in the evenings. Rectal examination showed decreased sensation to touch as well as decreased tone and smearing on underwear. A January 2008 addendum indicates that the Veteran had volitional control of the rectum with rectal incontinence and this was related to lumbar spine condition since it occurred at time of surgery. A February 2008 addendum indicates that the Veteran's claims file was reviewed with special attention to tabbed reports. The examiner stated that information in the claims file did not specifically state when the problem began but the Veteran was very clear on the timing (rectal incontinence occurred after lumbar spine surgery). The examiner stated the following: It is known that MS [multiple sclerosis] may also be a contributor to these neurologic symptoms but given the timing it is in this examiner's opinion at least as likely as not that these conditions are related to the veteran's service-connected lumbar spine condition. This opinion does not imply that the MS is not a contributor to the veteran's foot drop, [decreased] sensation and rectal incontinence. In March 2008, a VA nurse practitioner reviewed the file and opined that it was less likely than not that the Veteran's foot drop and bowel incontinence were related to his spinal surgery. She noted that there was no documentation of bowel incontinence until 2001 and that the previous opinion was based on subjective data only. The Veteran most recently underwent a VA examination in March 2009. This examination was conducted by Dr. C.M., who performed the December 2007 examination and provided the January and February 2008 opinions. She noted that the rectal incontinence was related to the lumbar spine condition since it occurred at time of surgery. Rectal examination results again showed decreased sensation to touch and volitional control of rectum as well as decreased tone and smearing on underwear. On review, the record contains competing opinions regarding whether the Veteran's bowel incontinence is related to service- connected lumbar spine disability. That is, Dr. C.M. relates the Veteran's bowel incontinence, at least in part, to service- connected back disability, and the VA nurse practitioner does not. The Board acknowledges that although Dr. C.M. reviewed the claims file, her opinion appears to be based in large part on the Veteran's self-reported history. Objective evidence of record does not document complaints of bowel incontinence immediately following the lumbar spine surgery; the Board notes, however, that the Veteran is competent to report difficulties with fecal incontinence. See Charles v. Principi, 16 Vet. App. 370 (2002) (appellant competent to testify regarding symptoms capable of lay observation). Regarding the February 2005 neurology report, the parties assert that such indicates a relationship between rectal incontinence and the lumbar spine condition. On review, however, it appears the neurologist is relating the various symptoms to cervical disc lesions or a myelopathy causing process which co- existed with the cervical disc lesions. In this case, the cause of the Veteran's bowel incontinence may never be known to a certainty and as illustrated by the above discussion, there appear to be several possible causes. Under the benefit-of-the-doubt rule, for the Veteran to prevail, there need not be a preponderance of the evidence in his favor, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Given the evidence set forth above, such a conclusion cannot be made in this case. Thus, resolving reasonable doubt in the Veteran's favor, a separate 10 percent evaluation is warranted for bowel incontinence. See 38 C.F.R. § 3.102. The Veteran reports the need for a diaper only at night and considering the objective examination findings, the disability picture appears consistent with constant slight or occasional moderate leakage. ORDER A rating of 10 percent for bowel incontinence associated with service-connected lumbar spine disability is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND Pursuant to the joint motion, the parties agreed that a remand was required in order for the Board to provide an adequate statement of reasons or bases for its determination that a medical opinion was not required. The parties determined that the Board failed to include a discussion of the favorable medical evidence tending to suggest a possible secondary relationship between the Veteran's cervical radiculopathy and service- connected lumbar spine disability. Specifically, a 1988 private medical record diagnosing slowly worsening joint disease, first in the knees, and then hands and shoulders since 1972; and a February 2005 private neurology evaluation wherein the examiner identified neurologic symptoms of neck/shoulder pain, myoclonic jerks in the upper extremity and opined that it was certainly possible that the symptoms were residuals of the disc lesions and/or surgical procedures. Evidence of record shows a current diagnosis of cervical radiculopathy and considering the medical evidence referenced above, the Board finds that a VA examination and medical opinion are warranted. See 38 C.F.R. § 3.159(c)(4) (2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board observes that the regulation pertaining to secondary service connection was amended during the course of the Veteran's appeal, effective October 10, 2006. Under the revised regulation, the rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310(b) (2007- 2010). This requirement was not contained in prior versions of the regulation. See 38 C.F.R. § 3.310 (2006). Therefore, in deciding the claim, the originating agency should apply the former version of the regulation. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of cervical radiculopathy. All indicated studies should be accomplished. A copy of this remand and the claims folder must be available for review by the examiner. The examiner is requested to provide a medical opinion as to whether currently diagnosed cervical radiculopathy is at least as likely as not caused by or permanently worsened (aggravated) by the Veteran's service-connected facet syndrome with sclerosis, lumbosacral spine. In making this determination, the examiner is requested to address the impact, if any, of the January 2000 injury where the Veteran was struck in the back of the head and neck with a piece of fiberglass roofing. The examiner must note the following: ? "It is due to" means 100 percent assurance of relationship. ? "It is at least as likely as not" means 50 percent or more. ? "It is not at least as likely as not" means less than a 50 percent chance.