Citation Nr: 1334982 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 04-15 167 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a bowel disability, to include as secondary to service-connected degenerative changes of the thoracolumbar spine. 2. Entitlement to service connection for a bladder disability, to include as secondary to service-connected degenerative changes of the thoracolumbar spine. 3. Entitlement to service connection for a bilateral neurologic disability of the lower extremities, other than left L5-S1 radiculopathy, to include as secondary to service-connected degenerative changes of the thoracolumbar spine. 4. Entitlement to an increased rating for degenerative changes of the thoracolumbar spine, currently rated 40 percent disabling. 5. Entitlement to an initial increased rating for left L5-S1 radiculopathy, currently rated 10 percent disabling. 6. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: J. Michael Wood, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from December 1980 to August 1982. These matters came to the Board of Veterans' Appeals (Board) from rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO). In an October 2002 rating decision, the RO denied entitlement to service connection for bowel and bladder incontinence and bilateral lower extremity diabetic peripheral neuropathy; denied entitlement to an increased rating in excess of 40 percent for degenerative changes of the thoracolumbar spine; and, granted entitlement to a separate compensable rating for left L5-S1 radiculopathy, assigning a 10 percent rating, effective September 23, 2002. In a February 2004 rating decision, the RO assigned an effective date of March 15, 2002 to the grant of the 10 percent rating for left L5-S1 radiculopathy. The Veteran testified before the undersigned at an August 2010 videoconference hearing; a transcript is of record. These matters were remanded in October 2010 and May 2012. The issues of entitlement to service connection for bowel and bladder disabilities; an increased rating for degenerative changes of the thoracolumbar spine and left L5-S1 radiculopathy; and, entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO. VA will notify the Veteran if any further action is required on his part. FINDING OF FACT Bilateral neurologic disability of the lower extremities (other than left L5-S1 radiculopathy) is not the result of a disease or injury during active service; or due to or aggravated by a service-connected disability. CONCLUSION OF LAW A bilateral neurologic disability of the lower extremities (other than left L5-S1 radiculopathy) was not incurred in or aggravated by active service; and, was not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1112(a), 1131, 1137 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309, 3.310 (2006 & 2013). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in June 2002 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. In June 2007 he was informed of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Contrary to VCAA requirements, some of the notice in this case was provided after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claims in supplemental statements of the case, to include the most recent one in May 2013. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearing the issues were identified, including the evidence needed to substantiate the claims and the elements of the claim not previously established. There was a discussion of possible evidence that could substantiate the claims. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service and post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished, to include substantial compliance with the Board remands. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The previous remands were for the purpose of affording the Veteran a VA examination and to obtain an adequate medical opinion. As will be discussed in detail below, the Veteran was afforded a VA examination in November 2012. The evidence of record contains service treatment and personnel records, VA treatment records and private treatment records, and lay statements and testimony from the Veteran. The Board concludes that no available outstanding evidence has been identified pertaining to the claim. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to this claim. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim of service connection for bilateral neurologic disability of the lower extremities. Smith v. Gober, 14 Vet. App. 227 (2000). Service connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131. Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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 military service. 38 U.S.C.A. §§ 1131; 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Continuity of symptomatology under 38 C.F.R. § 3.303(b) can only be used to establish service connection in the case of a chronic disease listed in 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309(a). Walker v. Shinseki, 706 F.3d 1331 (Fed. Cir. 2012). Neurologic disability of the extremities is not among the listed chronic diseases. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Under 38 C.F.R. § 3.310, compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The provisions of 38 C.F.R. § 3.310 have been amended. 38 C.F.R. § 3.310(b) (2013). The amendments impose additional requirements to establish service connection on the basis of aggravation. The Board is, accordingly applying the old version of the regulation. Princess Cruises v. United States, 397 F.3d 1358 (Fed. Cir. 2005) (if a rule or regulation appears to have a retroactive effect, then the rule or regulation cannot be applied to cases pending at the time of its promulgation). In adjudicating this claim, the Board must assess the competence and credibility of all evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court emphasized that lay testimony is competent if it pertains to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neurological disability, bilateral lower extremities Service connection is in effect for radiculopathy of the left lower extremity, specifically left L5-S1 radiculopathy, as associated with his degenerative changes of the thoracolumbar spine. The Veteran asserts that he also has a neurological disability of the lower extremities due to his service-connected thoracic spine disability. There is no contention from the Veteran that he has a neurological disability of the lower extremities that is directly due to service, and there is no other evidence of direct service incurrence. The service treatment records do not reflect any treatment for, or complaints of, a neurological disability of the lower extremities during service and there is no record of treatment or complaints in the years immediately thereafter. Bilateral lower extremity diabetic neuropathy was not shown until almost two decades after service. Moreover, the November 2012 VA examiner opined that the current bilateral neurological disability of the lower extremities, other than left L5-S1 radiculopathy, less likely than not had its onset in service, was related to his back injuries or neurologic symptoms in service, or was otherwise the result of disease or injury in service. The examiner noted that review of the medical records reflects that the Veteran was diagnosed as having bilateral lower extremity diabetic peripheral neuropathy based on EMG findings in May 2002. Service treatment records are silent for diabetes/diabetic peripheral neuropathy conditions. His diabetic peripheral neuropathy was found to be medically unrelated to his back injuries with neurologic (radiculopathy) symptoms or any other disease or injury in service. With regard to any relationship between his service-connected thoracic spine disability, the November 2012 VA examiner explained that EMG results showed bilateral lower extremity early diabetic peripheral neuropathy, no lumbosacral spinal stenosis, disc herniation or nerve root impingement. His lower extremity diabetic neuropathy was secondary to diabetes mellitus and medically unrelated to his lumbar spine degenerative joint disease condition or any medications taken for that condition. The opinion of the November 2012 VA examiner is the most probative evidence with regard to the question of whether there is a relationship between any bilateral lower extremity diabetic neuropathy condition and his lumbar spine disability. The examiner fully considered the record, provided definitive opinions and supported the conclusions with a thorough rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds the opinions persuasive and probative, as it is premised upon an accurate history and is supported by reasons that are definitive. Id., see Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The examiner did not explicitly state why the neurologic impairment was diabetic in nature, but did provide reasons why the disability was unrelated to the thoracolumbar disability and there has been no contention that diabetes is service connected. There are no opinions to the contrary. The question of whether any claimed bilateral lower extremity diabetic neuropathy condition is due to or aggravated by a service-connected disability requires medical expertise to answer. The Veteran's opinion that any current neurologic disabilities of the lower extremity are related to a service-connected disability are not competent, because such an opinion would require medical knowledge. In sum, the preponderance of the evidence is against the Veteran's claim of service connection for bilateral neurological disability of the lower extremities. Reasonable doubt does not arise. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57 (1990). Service connection for bilateral neurological disability of the lower extremities is denied. ORDER Entitlement to service connection for a bilateral neurological disability of the lower extremities, other than L5-S1 radiculopathy, is denied. REMAND Service connection The November 2012 VA examiner opined that it is less likely as not that his current bowel and bladder disabilities were either caused (in whole or in part) or aggravated by his service-connected thoracic spine disability. The examiner appears to rely on a lack of diagnosis and/or treatment for bowel and bladder disabilities in 2002 and thereafter. However, a November 2010 VA examiner diagnosed fecal incontinence and bladder incontinence. Moreover, the Veteran's subjective complaints of bowel and bladder incontinence are documented throughout the medical record. Thus, clarification is needed as to any relationship between bowel and bladder disabilities and his service-connected thoracic spine disability. Increased ratings The Veteran asserts that his service-connected lumbar spine disability and associated left lower extremity radiculopathy preclude gainful employment pursuant to 38 C.F.R. § 4.16(b). The Veteran also asserts that his service-connected disabilities result in marked interference with employment to render impractical the application of the regular schedular standards, and an extraschedular rating should be considered pursuant to 38 C.F.R. § 3.321(b)(1). A March 2013 statement from a private vocationalist states that the Veteran has a high school education and has worked as a plumber's helper, plumber, insurance salesman, and store clerk/laborer. The vocationalist opined that his physical symptoms appear to be significant enough to render him totally unable to work. He has issues with independent ambulation, independent travel, independent hygiene/bathroom tasks, independent medication maintenance, and day time sleeping episodes which impact his ability to perform in even sedentary work settings. It is not clear that the November 2012 VA examiner adequately considered the record, to include the VA vocational rehabilitation records, in formulating an opinion regarding employability. Moreover, in light of the opinions of Dr. Skaggs and the private vocationalist, another VA examiner should be asked to comment on whether the Veteran's service-connected disabilities preclude gainful employment. There is plausible evidence that the Veteran's service connected disabilities cause unemployability and an allegation that regular scheduler criteria are inadequate to evaluated those disabilities. The Veteran's claim must be submitted to VA's Director, Compensation and Pensions Service for extraschedular consideration per § 4.16(b) and § 3.321(b)(1). See Bowling v. Principi, 15 Vet. App. 1 (2001). The Board notes that the November 2010 VA examination report reflected severe flare-ups of his low back every 1 to 2 weeks but noted no incapacitating episodes. At the November 2012 VA examination, the Veteran reported that his condition had worsened but range of motion testing was not conducted because the Veteran was in a power wheelchair and was unable to stand for the examination. Additional findings are needed. Accordingly, the case is REMANDED for the following actions: 1. Afford the Veteran an examination to determine the severity of his lumbar spine disability and associated left lower extremity radiculopathy, and the nature and etiology of his claimed bowel and bladder disabilities. It is imperative that the claims file be made available to and reviewed by the examiner in connection with the examination. The examiner should answer the following questions as definitively as possible: (a) The examiner should clarify whether the Veteran has had a bowel or bladder disability since May 2002. The examiner should consider the ongoing reports of incontinence. In identifying any disability, consideration should be given to disabilities diagnosed in the medical record and VA examination reports. (b) The examiner should opine whether it is at least as likely as not (50 percent probability or more) that any current bowel disability (diagnosed since May 2002) was caused (in whole or part) or aggravated (made worse) by his service-connected degenerative changes of the thoracolumbar spine and/or medications taken for that disability? (c) Is it at least as likely as not (50 percent probability or more) that any current bladder disability (diagnosed since May 2002) was caused (in whole or part) or aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his service-connected degenerative changes of the thoracolumbar spine and/or medications taken for that disability. The examiner should specifically whether any bladder or bowel impairment is caused or aggravated by the service connected low back disability. (d) The examination of the spine should include range of motion studies. The examiner must report whether there is any additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report any specific information as to the frequency and duration of physician prescribed bedrest in the past 12 months. With regard to left lower extremity radiculopathy, the examiner should fully describe the extent and severity of his neurological symptoms. The examiner should identify the specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of the nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). The examiner should also identify any muscular atrophy. The examiner should opine whether the Veteran's service connected disabilities (lumbar spine disability and radiculopathy of the left lower extremity) in combination preclude gainful employment for which his education and occupational experience would otherwise qualify him for any period from March 2000. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. Thereafter, refer the claim for extraschedular consideration of higher ratings for thoracolumbar disability and left L5-S1 radiculopathy, and TDIU to the Director of Compensation and Pension for adjudication in accordance with 38 C.F.R. § 4.16(b) and § 3.321(b)(1). 4. If any issue on appeal remains denied, issue a supplemental statement of the case. The case should then be returned to the Board, if otherwise in order. The Veteran and his attorney have the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs