Citation Nr: 1802883 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 06-13 341 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 10 percent, prior to March 3, 2016 and in excess of 40 percent thereafter, for right lower extremity radiculopathy. 2. Entitlement to a rating in excess of 40 percent for bladder incontinence. 3. Entitlement to a rating in excess of 30 percent, from January 20, 2009 to July 12, 2017, for bowel incontinence. 4. Entitlement to an earlier effective date, prior to January 20, 2009, for the grant of service connection for bladder incontinence. 5. Entitlement to an earlier effective date, prior to January 20, 2009, for the grant of service connection for bowel incontinence. 6. Entitlement to an earlier effective date, prior to January 6, 2004, for the grant of service connection for a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Michael Miskowiec, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty in the Army from September 1974 to November 1967 to April 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2011, March 2014, and September 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In June 2017, the Board remanded the matters for additional development. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Prior to April 30, 2013, the Veteran's right lower extremity radiculopathy was manifested by symptoms of pain that radiated to lower extremity and numbness. 2. Since April 30, 2013, the Veteran's right lower extremity radiculopathy has been manifested by symptoms of numbness and no sensation to light touch to the right lower leg/ankle and decreased sensation to light touch of the right thigh/knee. 3. At no time during the period on appeal has the Veteran's right lower extremity demonstrated muscle atrophy or complete paralysis. 4. The Veteran's bladder incontinence is manifested by symptoms of frequent urine leakage which requires the use of absorbent materials 2 to 4 times per day. 5. Between August 29, 2003 and July 12, 2017, the Veteran's bowel incontinence was manifested by symptoms of frequent bowel movements following eating; the use of continuous medication and the need to be near a bathroom. There was no evidence of extensive leakage and fairly frequent involuntary bowel movements or complete loss of sphincter control. 6. The Veteran filed an informal claim for entitlement to service connection for a back disability on August 29, 2003. Service connection was subsequently granted for degenerative disc disease of the lumbar spine, effective August 29, 2003. 7. There is competent evidence that the Veteran suffers from bladder and bowel incontinence which is a neurologic abnormality related to his service connected degenerative disc disease of the spine. 8. There is competent evidence that the Veteran suffered from bladder and bowel incontinence at the time of his August 29, 2003 informal claim for DDD of the spine. 9. Prior to January 6, 2004, the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to April 30, 2013, the criteria for a rating in excess of 10 percent for right lower extremity radiculopathy have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2017). 2. Since April 30, 2013, the criteria for a 40 percent rating, but no higher for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2017). 3. The criteria for a rating in excess of 40 percent for bladder incontinence have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.115, Diagnostic Code 7542 (2017). 4. The criteria for rating in excess of 30 percent from January 20, 2009 to July 12, 2017 for bowel incontinence have not been met or approximated. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.114, Diagnostic Code 7332 (2017). 5. The criteria for entitlement to an earlier effective date of August 29, 2003, but no earlier, for the grant of service connection for bladder incontinence have been met. 38 U.S.C. §§ 5101, 5110 (West 2012); 38 C.F.R. § 3.400 (2017). 6. The criteria for entitlement to an earlier effective date of August 29, 2003, but no earlier, for the grant of service connection for bowel incontinence have been met. 38 U.S.C. §§ 5101, 5110 (West 2012); 38 C.F.R. § 3.400 (2017). 7. The criteria for a finding of a TDIU have been met prior to January 6, 2004. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 4.3, 4.16(a), 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Increased Rating Right Lower Extremity Radiculopathy Diagnostic Code 8620 rates neurologic manifestations of the lower extremities associated with the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires evidence of moderate incomplete paralysis of the sciatic nerve. 40 percent rating requires evidence of moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires evidence of severe incomplete paralysis with marked muscular atrophy. Finally, the maximum 80 percent rating requires evidence of complete paralysis, where the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. May 2003 medical records associated with the Veteran's Social Security Administration (SSA) disability benefits application indicate that the Veteran denied any radiation of pain from his back into his lower extremities. However, October 2003 records from Associated Counseling Services (within SSA records) indicate that the Veteran reported numbness in the right leg. At a November 2004 VA examination, the Veteran reported pain which radiated down the right leg to the great toe. A June 2010 VA examination report indicates that the Veteran endorsed symptoms of numbness and paresthesias on his right leg, but denied bowel and bladder function impairment. He was diagnosed with radiculopathy of the right lower leg (sciatic nerve). The Veteran was afforded a VA examination in April 2013 where the Veteran demonstrated radicular pain which traveled to the posterior knee. He had weakness of both dorsiflexion and plantar flexion of the ankles ad toes. Lower extremity reflexes were absent at the right knee and ankle jerks were absent. A March 2016 VA examination report indicates that lower extremity reflexes are absent at the right knee and right ankle. Sensory testing in the lower extremities shows that vibration perception is blunted distally in both legs in addition to temperature sensation. The Veteran was afforded a VA examination in March 2016 where the examiner noted that the Veteran had no sensation to light touch to the right lower leg; decreased sensation of the upper anterior thigh and knee but did not have muscle atrophy. The Veteran endorsed severe pain of the right lower extremity and moderate paresthesias and numbness. The examiner noted sciatic and femoral nerve involvement. The Board finds that prior to April 30, 2013, the Veteran was not entitled to a rating in excess of 10 percent. There was evidence that the Veteran suffered from symptoms of numbness in his right lower extremity; however, the symptoms appeared to be no more than mild in severity. Since April 30, 2013 (not March 3, 2016 as noted by the RO) the Board finds that a 40 percent rating is warranted. In that regard, there is evidence that the Veteran's right lower extremity is moderately severe evidence by symptoms of not just decreased sensation, but absent sensation to light touch on the lower leg/ankle and foot and toes. The Board likewise finds that a rating in excess of 40 percent is not warranted as there is no competent evidence of muscular atrophy or complete paralysis of the right lower extremity. In short, the Board finds that staged ratings are appropriate. The Veteran's symptoms reflect that the 10 percent rating is appropriate prior to April 30, 2013, and that a higher, 40 percent rating is warranted based on his symptoms from that point forward. However, the evidence does not warrant higher ratings apart from the grant of 40 percent rating from April 30, 2013. Bladder Incontinence The Veteran is currently rated pursuant to Diagnostic Code (DC) 7542 for neurogenic bladder. DC 7542 is rated as voiding dysfunction. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115a. Only the predominant area of dysfunction shall be considered for rating purposes. Id. The Veteran's predominant area of dysfunction is urinary leakage. Evaluation under urine leakage involves ratings ranging from 20 to 60 percent and contemplates continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence. A 20 percent rating contemplates leakage requiring the wearing of absorbent materials which must be changed less than two times per day. When there is leakage requiring the wearing of absorbent materials which must be changed two to four times per day, a 40 percent disability rating is warranted. When these factors require the use of an appliance or the wearing of absorbent materials which must be changed more than four times per day, a 60 percent evaluation is warranted. 38 C.F.R. § 4.115a. Competent evidence indicates that the Veteran's urine leakage requires the use of absorbent material which must be changed 2 to 4 times per day. The Veteran denied the use of an appliance. He denied the use of absorbent materials which must be changed more than 4 times a day. Based on these findings, it is the Board's conclusion that the currently assigned 40 percent rating for service-connected loss of bladder control is appropriate. It is clear that the Veteran does not show urinary leakage which requires the use of an appliance or the use of absorbent material more than 4 times a day. No renal dysfunction which might result in an increased rating is indicated. Bowel Incontinence (August 23, 2009 to July 12, 2017) Diagnostic Code 7332 provides a noncompensable rating for healed rectum and anus or slight impairment of sphincter control without leakage. A 10 percent rating is assigned for constant slight impairment of sphincter control or occasional moderate leakage. A 30 percent rating is assigned for occasional involuntary bowel movements or impairment of sphincter control necessitating the wearing of a pad. A 60 percent evaluation is warranted for extensive leakage and fairly frequent involuntary bowel movements. A 100 percent rating is warranted if there is complete loss of sphincter control. 38 C.F.R. § 4.114, Diagnostic Code 7332. Medical records associated with the SSA disability benefits application indicate that the Veteran reported uncontrolled bowels. Particularly, a May 2003 appointment with Dr. E.H. indicates that the Veteran reported loss of bowel or bladder control. He further reported in October 2003 that he had difficulty controlling his urine and bowels. Specifically, he reported defecating when urinating. A January 2004 VA pain consultation visit indicates that the Veteran reported bladder and bowel incontinence for which he was referred to neurology. At a November 2004 VA examination, the Veteran reported urinary urgency, but no other problems with his bladder or bowels. A June 2010 VA examination report indicates that the Veteran endorsed symptoms of numbness and paresthesias on his right leg, but denied bowel and bladder function impairment. The Veteran again denied symptoms of bladder or bowel dysfunction at a December 2011 VA examination. The Veteran was afforded a VA examination in March 2013 where he reported that he has problems with both bowel and bladder urgency. He reported that when he feels the need to urinate he has to get to a bathroom quickly or he will soil himself. An April 2014 VA treatment record indicates that the Veteran complained of bowel and bladder incontinence which has occurred for 2 to 3 years, but was worsening. The previous bladder ultrasound showed no problems with the bladder but more related to innervation and sphincter tone. A November 2016 VA examination report indicates that the Veteran suffered from impairment of rectal sphincter control. The Veteran reported that he has to stay near a bathroom constantly because he has frequent micturition and bowel movements with no control if he eats or drinks anything. He also reported taking Gabapentin on a continuous basis to help manage his symptoms. The examiner noted that the Veteran had impairment of rectal sphincter control with leakage which necessitated the use of a pad. The examiner specifically noted that the Veteran did not have complete loss of sphincter control. Based on the foregoing, the Board finds that the evidence of record does not warrant a rating in excess of 30 percent for bowel incontinence during the specific period on appeal. Arguably, the evidence of record does not support even a 30 percent rating at certain periods during; however, the Board will not disturb the already assigned rating. During the specific period on appeal, there is no evidence of extensive leakage and fairly frequent involuntary bowel movements or complete loss of sphincter control as required for a higher rating. See 38 C.F.R. § 4.114, DC 7332. Thus, a rating higher than 30 percent is denied. Other potentially applicable rating codes require fistula of the intestine, peritonitis, stricture of the anus, prolapse of the rectum, pruritus ani, or hernia, which are not present in the Veteran's case, and so are not appropriate to rate the Veteran's disability. 38 C.F.R. § 4.114, DC 7330, 7331, 7333, 7334, 7336-7340. III. Earlier Effective Date Bladder and Bowel Incontinence The Veteran contends that he is entitled to an earlier effective date, prior to January 20, 2009, for the grant of service connection for bladder and bowel incontinence. Specifically, the Veteran contends that he is entitled to the same effective date of August 29, 2003 as he received for the grant of service connection for degenerative disc disease (DDD) of the lumbar spine because his incontinences are related to the DDD. See October 2017 Veteran's Representative's Statement. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400 (2017). As an initial matter, in the June 2017 Board decision, the Board found that there was no clear and unmistakable error in the March 2006 rating decision which found that the proper effective date for the grant of service connection for DDD was August 29, 2003. The Veteran requests an earlier effective date for the grant of service connection for bladder and bowel incontinence as secondary to the DDD of the lumbar spine. The Veteran's effective date for the bladder and bowel incontinence cannot be earlier than the effective date of the primary disability for which the disabilities are secondary. In other words, the effective dates for the bladder and bowel incontinence cannot be earlier than August 29, 2003. As noted in the Board remand, there is evidence of complaints of incontinence prior to April 2014 (the original effective date for the grant of service connection but which was later changed to January 20, 2009 in a September 2017 rating decision). The Board remanded the matter to obtain a medical opinion which stated the onset of the Veteran's incontinence due to his service connected DDD. The Veteran was afforded a VA examination in July 2017 where the examiner noted the Veteran's reports of minor bladder and bowel incontinence following back surgery in 1997 and 1999 as well as reports of markedly worse symptoms in 2000. The examiner opined that the Veteran's current bowel and bladder incontinence were related to his service- connected back disability. The Board finds the July 2017 medical opinion probative in value. In determining whether such expert evidence is adequate, the report must be read as a whole. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). Although the examiner did not specify a particular date for the onset of the Veteran's bladder and bowel incontinence, he related both disabilities to the Veteran's service-connected back disability and noted the Veteran's complaints of bowel and bladder incontinence dating back as early as 2000. A reasonable inference can be made that the examiner found the Veteran's complaints of incontinence following surgery reliable. Based on this inference, the Board finds that it is at least a likely as not that the Veteran experienced these symptoms at the time he filed his DDD service connection claim. A March 2014 correspondence from the RO raises the issue of bowel and bladder incontinence based on a May 2013 VA spine examination which found evidence of both incontinences but did not determine the cause of either. Subsequent medical evidence would later conclude that the incontinences were residuals of the Veteran's DDD of the spine. Note 1 of the General Rating Formula for Diseases and Injuries of the Spine instructs the rater to evaluate objective neurologic abnormalities of the spine such as bladder and bowel impairment separately under the appropriate diagnostic code. Based on this premise, the Board finds that the Veteran is entitled to an effective date which reflects the same date of the grant of service connection for the Veteran's DDD of the spine since it has been determined that the bladder and bowel incontinences existed at the time of his DDD claim and are related to his DDD of the spine. Therefore, the Board finds that the Veteran is entitled to an earlier effective date of August 29, 2003 for the grant of service connection for bladder and bowel incontinence. TDIU In an August 8, 2017 correspondence, the Veteran's representative stated that the Veteran "would be willing to consider a grant of total disability effective August 29, 2003 to be a fully favorable decision regarding all issues in this appeal." Currently, the Veteran is in receipt of a TDIU rating, effective January 6, 2004. Total disability ratings 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). The RO previously assigned an effective date of January 6, 2004 for the award of TDIU benefits because that was the date the Veteran met the schedular requirements pursuant to 38 C.F.R. § 4.1(a). Prior to this decision, the Veteran's combined rating was 60 percent from August 29, 2003 and 70 percent from January 6, 2004. However, based on the instant decision's grants of earlier effective dates for service connection for bladder and bowel incontinence, the Veteran now meets the schedular requirements beginning on August 29, 2003. The Board concludes that the competent and credible evidence of record supports a finding of entitlement to TDIU, since August 29, 2003. The disability picture presented by the probative, competent, and credible evidence of record establishes that due to his service-connected disabilities, the Veteran has been unable to obtain or retain substantially gainful employment. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is denied. Entitlement to a 40 percent rating, but not higher, for right lower extremity radiculopathy from April 30, 2013, is granted, subject to regulations applicable to the payment of monetary benefits. Entitlement to a rating in excess of 40 percent for bladder incontinence is denied. Entitlement to a rating in excess of 30 percent, from January 20, 2009 to July 12, 2017, for bowel incontinence is denied. Entitlement to an effective date of August 29, 2003 for the award of service connection for bladder incontinence is granted. Entitlement to an effective date of August 29, 2003 for the award of service connection for bowel incontinence is granted. Entitlement to a TDIU, prior to January 6, 2004, is granted, subject to regulations applicable to the payment of monetary benefits. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs