Citation Nr: 1804275 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 11-10 349 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to an evaluation in excess of 40 percent for traumatic arthritis of the lumbar spine with intervertebral disc syndrome (IVDS). 4. Entitlement to a separate evaluation for urinary incontinence as a manifestation of a service-connected traumatic arthritis of the lumbar spine with IVDS. 5. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) for the period prior to January 30, 2015. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from November 1990 to July 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. Jurisdiction of the claims file has been transferred to the RO in Seattle, Washington. The Veteran testified before the Board at a December 2015 hearing conducted via videoconference. A transcript of the hearing is of record. This case was previously before the Board in March 2016, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. The issues of entitlement to service connection for fibromyalgia and PTSD, a separate compensable evaluation for urinary incontinence, and TDIU prior to January 30, 2015, are addressed in the REMAND portion of the decision below and are again REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's service-connected traumatic arthritis of the lumbar spine with IVDS is not manifested by ankylosis of the spine or bowel incontinence at any point during the appeal period. 2. Resolving all doubt in the Veteran's favor, her service-connected lumbar spine disability is manifested by urinary incontinence. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 40 percent for traumatic arthritis of the lumbar spine with IVDS have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5237 and 5243 (2017). 2. The criteria for a separate evaluation for urinary incontinence related to the Veteran's lumbar spine disability have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 4.71a, 4.115a (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has been provided notice letters throughout the appeal that address all notice elements required. All pertinent treatment records identified by the Veteran have been obtained, and VA examinations have been provided where warranted. There has been no allegation of errors with the duties to notify and/or assist in the instant case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009); see also Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (the Board's obligation to read filings in a liberal manner does not require the Board to search the record and address procedural arguments when the Veteran fails to raise them before the Board); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). As noted above, the current appeal has been previously remanded in March 2016. There has been substantial compliance with the Board's remand directives as they pertain to the issue decided herein, and adjudication of the appeal may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. I. Increased Evaluation Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as in the present case, entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The Veteran's lumbar spine disability has been evaluated as 40 percent disabling throughout the appeal period pursuant to Diagnostic Codes 5237 and 5243. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237 and 5243 (2017). She asserts a higher evaluation is warranted throughout the appeal period. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. A 40 percent evaluation is the maximum schedular evaluation available based solely on limitation of motion of the lumbar spine. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Pursuant to Diagnostic Code 5243, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 40 percent evaluation is assigned 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 evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a Diagnostic Code 5243. An incapacitating episode is defined by regulation as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Turning to the record, the Board again notes that, at 40 percent disabling, the Veteran's lumbar spine disability has been assigned the maximum schedular evaluation based on limitation of motion throughout the appeal period. See 38 C.F.R. § 4.71a, General Rating Formula. As such, no further discussion of limitation of motion is necessary. With respect to ankylosis, both November 2008 and January 2015 VA examinations explicitly determined that the Veteran does not have ankylosis of the spine. There is no competent evidence of record to establish that the Veteran has been diagnosed with ankylosis of the spine at any point during the appeal period. As such, an evaluation in excess of 40 percent under the General Rating Formula is not warranted for the Veteran's service-connected lumbar spine disability at any point during the appeal period. The Board has also considered whether an increased evaluation may be warranted under the provisions pertaining to IVDS. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. However, even assuming arguendo that the Veteran experiences incapacitating episodes due to IVDS, in light of the separate evaluations awarded for neurological manifestations of her lumbar spine disability, it is more beneficial to the Veteran to evaluate her disability under the General Formula. The Board has also considered whether a separate evaluation for neurological disability is warranted. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). The Veteran has been previously awarded separate evaluations for radiculopathy of the left and right lower extremities and, as discussed below, the Board is awarding a separate evaluation for urinary incontinence. The VA examinations of record note there is no bowel or sexual impairment due to the Veteran's service-connected lumbar spine disability. Therefore, additional evaluations for neurological manifestations beyond those previously awarded are not warranted. In sum, there is no competent evidence of ankylosis of the spine at any point during the appeal period. The preponderance of the evidence is against an evaluation greater than 40 percent for the Veteran's lumbar spine disability. The benefit of the doubt rule does not apply, and an increased initial evaluation is not warranted. 38 U.S.C.. § 5107(b) (West 2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Urinary Incontinence As noted by the Board in the March 2016 remand, the January 2015 VA examiner noted that the Veteran's lumbar spine disability causes neurological impairment in the form of occasional urinary incontinence for which she needs to stay near the bathroom. Although a December 2016 VA examiner opined that the Veteran's degenerative lumbosacral spine/disc changes "are not plausibly the cause" of her intermittent urinary incontinence, in light of the conflicting opinions of record and resolving all doubt in the Veteran's favor, the Board finds that a separate evaluation for urinary incontinence as a manifestation of service-connected traumatic arthritis of the lumbar spine with IVDS is warranted. However, for the reasons discussed below, the Board will remand the matter to the AOJ for assignment of a specific evaluation and effective date(s). ORDER An evaluation in excess of 40 percent for traumatic arthritis of the lumbar spine with IVDS is denied. A separate evaluation for urinary incontinence as a manifestation of traumatic arthritis of the lumbar spine with IVDS is granted. REMAND For the reasons discussed below, the Veteran's claims of service connection for fibromyalgia and PTSD, a separate evaluation for urinary incontinence, and TDIU prior to January 30, 2015, must be remanded to the AOJ to ensure proper development. With respect to the Veteran's claim for fibromyalgia, in the March 2016 remand, the Board instructed the Veteran be provided a VA examination to address the etiology of her diagnosed disability. While the requested examination was conducted in August 2016, the negative etiological opinion contained therein is inadequate for the purposes of determining service connection. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). In this regard, the VA examiner based the negative opinion solely on the fact that fibromyalgia was not diagnosed until approximately 2009, 16 years following service separation. However, the Board observes that, even if a disability was not diagnosed during service, service connection may still be warranted if the medical evidence establishes that the disability was incurred during service. See 38 C.F.R. § 3.303(d). The Veteran has testified that she experienced significant joint pain throughout her service, and indicated as such on her June 1993 Report of Medical History. The August 2016 VA examiner did not explain why such symptomatology does not represent early manifestations of fibromyalgia, regardless of the date of diagnosis. As such, a new opinion must be obtained. With respect to PTSD, the Veteran was provided a VA examination in December 2016 at which she was diagnosed with PTSD due to her reported in-service personal assault(s). However, to date, these reported stressors have yet to be verified. In the March 2016 remand, the Board instructed that the AOJ should forward the Veteran's military personnel records, together with the stressor information, to the Joint Services Records Research Center (JSRRC), asking JSRRC to provide any additional information regarding the Veteran's stressors. This development was not completed, thus requiring a remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed above, the Board has determined that a separate evaluations is warranted for urinary incontinence as associated with the Veteran's service-connected lumbar spine disability. See generally 38 C.F.R. § 4.71a, Note (1). However, as it appears a staged evaluation may be appropriate, a remand is necessary to allow the AOJ to assign initial evaluation(s ) and effective date(s) with respect to this condition. See generally Hart, supra. Should the Veteran disagree with the initial evaluation(s) and/or effective date(s) assigned, the issue should be returned to the Board only if a timely notice of disagreement and, after the issuance of a statement of the case, a timely substantive appeal are submitted. Finally, the Veteran's claim of entitlement to TDIU prior to January 30, 2015, is impacted by the outcome of the claims remanded herein and therefore, is inextricably intertwined with these issues. All issues "inextricably intertwined" with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the claim of entitlement to TDIU must be remanded to the AOJ in accordance with the holding in Harris to allow the AOJ to fully develop and adjudicate any outstanding claims. Accordingly, the case is REMANDED for the following action: 1. Assign a separate initial evaluation for urinary incontinence as a manifestation of service-connected traumatic arthritis of the lumbar spine with IVDS, considering whether staged evaluations are warranted. All appropriate procedures should be followed. The Veteran should be advised that, if she wishes to initiate an appeal of this issue, she must file a timely notice of disagreement following the issuance of a rating decision. 2. Take all appropriate steps to verify the Veteran's claimed stressor, including those pertaining to her reports of personal assault in accordance with 38 C.F.R. § 3.304(f)(5). The AOJ should forward a copy of the Veteran's complete official military personnel file, together with the stressor information, to the Joint Services Records Research Center (JSRRC). Request the JSRRC to provide any additional information available regarding the Veteran's stressors. 3. If, and only if, additional information regarding the Veteran's reported in-service stressors is obtained, return the claims file to the VA examiner that conducted the December 2016 VA PTSD examination or, if unavailable, another appropriate VA examiner for an addendum opinion. If the VA examiner determines an additional clinical examination of the Veteran is necessary, one is to be arranged. The entire claims file must be provided to the examiner for review in conjunction with the examination. Any clinically indicated testing and/or consultations must be performed. Following a review of the claims file and clinical evaluation of the Veteran, if performed, the examiner is requested to opine as to whether it is at least as likely as not (probability of at least 50 percent) that any diagnosed psychiatric disability began in service, was caused by service, or is otherwise etiologically related to the Veteran's period of active service, to include her assertion that she experienced sexual discrimination and sexual assault? A complete rationale must be offered for all opinions expressed, including a discussion of the evidence and medical principles which led to the conclusions reached. 4. Return the claims file to the VA examiner that conducted the August 2016 VA fibromyalgia examination or, if unavailable, another appropriate VA examiner for an addendum opinion. If the VA examiner determines an additional physical examination of the Veteran is necessary, one is to be arranged. The entire claims file must be provided to the examiner for review in conjunction with the examination. Any clinically indicated testing and/or consultations must be performed. Following a review of the claims file, and physical examination of the Veteran if performed, the examiner is to offer an opinion as to whether is it at least as likely as not (probability of at least 50 percent) that the Veteran's fibromyalgia began in service, was caused by service or is otherwise etiologically related to her period of active service. In offering this opinion, the examiner must address the Veteran's assertions that she experienced significant joint pain during service. The examiner is reminded that a negative opinion may not be based solely on a lack of documented treatment or diagnosis during service. A complete rationale must be offered for all opinions expressed, including a discussion of the evidence and medical principles which led to the conclusions reached. 5. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, she and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or 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 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs