Citation Nr: 18150846 Decision Date: 11/16/18 Archive Date: 11/15/18 DOCKET NO. 15-27 591A DATE: November 16, 2018 ORDER A 30 percent rating for service-connected bowel incontinence from August 13, 2013 is granted. Entitlement to a rating in excess of 20 percent prior to August 13, 2013 and from March 1, 2014 to June 14, 2017 for service-connected degenerative disc disease with spondylolisthesis and chronic strain of the lumbar spine is denied. Entitlement to a rating in excess of 10 percent prior to June 15, 2017 for service-connected left lower extremity radiculopathy of the sciatic nerve is denied. Entitlement to a rating in excess of 10 percent prior to June 15, 2017 for service-connected right lower extremity radiculopathy of the sciatic nerve is denied. Entitlement to a rating in excess of 40 percent from June 15, 2017 for service-connected degenerative disc disease with spondylolisthesis and chronic strain of the lumbar spine is dismissed. Entitlement to a rating in excess of 20 percent from June 15, 2017 for service-connected left lower extremity radiculopathy of the sciatic nerve is dismissed. Entitlement to a rating in excess of 20 percent from June 15, 2017 for service-connected right lower extremity radiculopathy of the sciatic nerve is dismissed. Entitlement to a rating in excess of 20 percent for service-connected radiculopathy of the left femoral nerve is dismissed. Entitlement to a rating in excess of 20 percent for service-connected radiculopathy of the right femoral nerve is dismissed. FINDINGS OF FACT 1. From August 13, 2013 the Veteran’s bowel incontinence has been manifested by occasional involuntary bowel movements. 2. Prior to August 13, 2013 and from March 1, 2014 to June 14, 2017, the Veteran’s service-connected degenerative disc disease with spondylolisthesis and chronic strain of the lumbar spine is manifested by pain and limitation of motion with flexion greater than 30 degrees and is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 3. Prior to June 15, 2017 the Veteran’s radiculopathy of the left lower extremity is manifested by pain and numbness and no more than mild incomplete paralysis of the sciatic nerve. 4. Prior to June 15, 2017 the Veteran’s radiculopathy of the right lower extremity is manifested by pain and numbness, and decreased sensation, and no more than mild incomplete paralysis of the sciatic nerve. 5. During the April 16, 2018 Board of Veterans’ Appeals (Board) hearing, prior to the promulgation of a decision in the appeal, the Veteran requested to withdraw the issues of entitlement to increased ratings for service-connected degenerative disc disease with spondylolisthesis and chronic strain of the lumbar spine in excess of 40 percent, bilateral lower extremity radiculopathy of the sciatic nerve in excess of 20 percent, and bilateral femoral nerve radiculopathy, from June 15, 2017. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating from August 13, 2013 for service-connected bowel incontinence have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, Diagnostic Code 7332. 2. The criteria for a rating in excess of 20 percent prior to August 13, 2013 and from March 1, 2014 to June 14, 2017 for service-connected degenerative disc disease with spondylolisthesis and chronic strain of the lumbar spine have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 3. The criteria for a rating in excess of 10 percent prior to June 15, 2017 for service-connected left lower extremity radiculopathy of the sciatic nerve have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8720. 4. The criteria for a rating in excess of 10 percent prior to June 15, 2017 for service-connected right lower extremity radiculopathy of the sciatic nerve have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8720. 5. The criteria for withdrawal of a substantive appeal by the Veteran as to the issues of entitlement to increased ratings for service-connected degenerative disc disease with spondylolisthesis and chronic strain of the lumbar spine in excess of 40 percent, bilateral lower extremity radiculopathy of the sciatic nerve in excess of 20 percent, and bilateral femoral nerve radiculopathy, from June 15, 2017 have been satisfied. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1989 to July 1995. In April 2018, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Here, the Veteran is in receipt of a 40 percent rating for his lumbar spine disability and a 20 percent rating for his bilateral lower extremity radiculopathy of the sciatic nerve beginning June 15, 2017. In August 2017 he was awarded a 20 percent rating for right and left femoral nerve radiculopathy effective June 15, 2017. During the April 2018 Board hearing the Veteran explicitly stated that he was not seeking a higher rating for those disabilities for the period beginning June 15, 2017 and withdrew the issues. The undersigned clearly identified the issues and the Veteran affirmed that he was limiting the scope of his appeal to the period prior to June 15, 2017 and requesting a withdrawal as to the issues on appeal from that date. Therefore, the discussion below relates only to entitlement to higher disability ratings prior to that date. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to those issues and they are dismissed. Increased Rating Disability ratings are determined by applying the criteria set forth in the Department of Veterans Affairs (VA) Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The issues on appeal stem from a January 2013 claim for increased rating. The Veteran asserts that his lumbar spine and bilateral lower extremity radiculopathy disabilities are more severe than the currently assigned ratings. 1. Lumbar Spine. The Veteran is in receipt of a 20 percent rating prior to August 13, 2013, a 100 percent rating from August 13, 2013 to February 28, 2014 and a 20 percent rating from March 1, 2014 to June 14, 2017. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made 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. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, IVDS is not shown or alleged. During the appeal period the Veteran underwent VA examinations in March 2013and December 2015. Range of motion testing was performed and showed, at worst, forward flexion to 50 degrees. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that he has reduced motion in his spine, he has not described a range of motion which would warrant a higher rating. In this regard, during the March 2013 examination he did report flare-ups but described the flare-ups as consisting of increased pain and that he seeks bed rest. He reported that his back disability causes limitations at work with heavy lifting, walking, standing, and that he has to occasionally take short breaks due to increased pain. During the December 2015 examination he stated that he is unable to bend and pick objects up from the floor without squatting. Likewise, at his April 2018 Board hearing he stated that he experiences sharp pain, numbness in his legs and toes, difficulty driving and difficulty with stumbling and falling when walking. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Given the above, a higher rating is not warranted based on limitation of motion. Ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran. Regarding relevant neurological findings, the evidence of record was negative for neurological findings associated with the Veteran’s service-connected lumbar spine disability beyond the already service-connected erectile dysfunction, and bilateral lower extremity radiculopathy of the sciatic nerve and bowel incontinence discussed below. Further, the evidence of record does not reflect that the Veteran’s femoral nerve radiculopathy warrants a rating prior to June 15, 2017. Notably, the March 2013 and December 2015 examiners denied femoral nerve involvement with respect to the Veteran’s radiculopathy. There is no evidence of record in significant conflict with clinical findings on examination. The Board notes that during the December 2015 examination the Veteran reported that he has had four to five accidents for bowel incontinence and very infrequent urinary incontinence. He reported that his bowel incontinence began six months after his 2013 surgery and that his current symptoms occur during flare-ups. He reported having urgency to defecate and low back pain prior to having soft stool. The examiner reported that the Veteran’s bowel incontinence is manifested by slight impairment of sphincter control, without leakage. He reported occasional involuntary movements. The examiner opined that the Veteran’s bowel incontinence is at least as likely as not due to the Veteran’s lumbar spine disability. The record reflects that the Veteran underwent lumbar spine surgery in August 2013. Treatment reports confirm that he complained of bowel and urinary incontinence after surgery and that he would develop a sharp pain and then defecate. During the March 2013 examination the Veteran denied bowel or bladder changes and the examiner denied any other neurologic abnormalities related to the spine. In light of the foregoing, the Board finds that a 30 percent rating is warranted from the Veteran’s August 13, 2013 surgery. The record does not reflect that the Veteran’s service-connected urinary incontinence warrants a compensable rating prior to June 15, 2017. VA examiners denied other neurologic abnormalities during lumbar spine examination in March 2013 and December 2015. During the December 2015 examination the Veteran complained of urinary retention and reported that he urinates one to two times per day and frequently at night; he reported very infrequent urinary incontinence. The Veteran complained of problems related to urination; however, as the evidence does not show that the Veteran’s urinary incontinence complaints were related to neurological impairment, a separate rating for urinary incontinence prior to June 15, 2017 is not warranted. 2. Bilateral Lower Extremity Radiculopathy. The Veteran’s bilateral lower extremity radiculopathy is evaluated under Diagnostic Code 8720. 38 C.F.R. § 4.124a. Sciatic nerve disability is rated as follows: 80 percent for complete paralysis of the nerve; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. Ratings can also be assigned for incomplete paralysis of the nerve. When incomplete paralysis is severe with marked muscular atrophy a 60 percent rating is assigned, if moderately severe a 40 percent rating is assigned, if moderate a 20 percent rating is assigned, and if mild a 10 percent rating is assigned. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial 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. The Board observes that the terms “mild,” “moderate,” and “severe” are not defined in the regulations. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Although the use of the terms “mild,” “moderate,” and “severe” by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran’s radicular symptoms were evaluated during the March 2013 and December 2015 VA examinations. In March 2013 the Veteran complained of low back pain that radiated bilaterally into the legs and feet with intermittent numbness. The examiner reported that the Veteran’s radiculopathy involved the bilateral sciatic nerves. He described the severity as mild bilaterally. In December 2015 the examiner reported that the Veteran’s radiculopathy is not actively causing acute signs and symptoms or involvement requiring treatment. He described the Veteran’s radiculopathy as mild on the right and not affecting the left. The Veteran reported numbness in the lower extremities. Reflex and sensory examination revealed deep tendon reflex of the right ankle was absent and there was decreased sensation in the right foot/toes. Muscle atrophy was not noted during either examination. VA treatment reports reflect that the Veteran complained of right foot numbness after surgery. The evidence as a whole does not demonstrate bilateral lower extremity radiculopathy of the sciatic nerve that more nearly approximates moderate (as opposed to mild) incomplete paralysis prior to June 15, 2017. See 38 C.F.R. § 4.124a. The evidence of record, to include the Veteran’s lay assertions, reflects that the Veteran experienced decreased sensation, pain, and numbness in the lower extremities. The Veteran’s bilateral lower extremity radiculopathy has been described as, at most, mild, during examination. Muscle atrophy was not noted. Neither treatment reports nor the Veteran’s lay statements indicate damage to any nerve in the lower extremities to allow for a rating in excess of 10 percent during this period. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning even higher ratings, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Gonzalez, Associate Counsel