Citation Nr: 1808895	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  16-32 198	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Entitlement to service connection for a mouth condition.

3.  Entitlement to service connection for a sleep condition.

4.  Entitlement to service connection for depressive disorder, to include as secondary to service-connected disabilities.

5.  Whether new and material evidence has been received to reopen a previously denied claim for service connection for tinnitus.

6.  Entitlement to an effective date earlier than September 25, 2003, for the grant of service connection for degenerative disc disease (DDD) and spondylolisthesis of the lumbar spine.

7.  Entitlement to an initial rating higher than 20 percent for degenerative disc disease (DDD) and spondylolisthesis of the lumbar spine prior to May 28, 2013, and higher than 40 percent thereafter.

8.  Entitlement to an initial rating higher than 10 percent for right lower extremity radiculopathy from May 28, 2013.

9.  Entitlement to an initial rating higher than 10 percent for left lower extremity radiculopathy from May 28, 2013.

10.  Entitlement to an initial rating higher than 30 percent for fecal incontinence from May 28, 2013.

11.  Entitlement to a separate rating for urinary incontinence.

12.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

Shamil Patel, Counsel


INTRODUCTION

The Veteran had active service in the U.S. Army from January 1953 to October 1954.

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from two rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

In February 2014, the RO increased the assigned rating for the Veteran's lumbar spine condition to 40 percent effective May 28, 2013.  It also granted service connection for fecal incontinence at 30 percent, as well as left and right lower extremity radiculopathy at 10 percent each, all effective from May 28, 2013.

However, the Board notes that the June 4, 2013, submission from the Veteran which led to the February 2014 rating decision was not a claim, but rather a request for reconsideration.  In a July 2012 rating decision, the RO granted service connection for the lumbar spine condition and assigned a 20 percent rating effective from September 25, 2003.  In the June 2013 submission, the Veteran's representative sought "reconsideration of Rating Decision dated July 20, 2012, specifically evaluation of DDD and spondylolisthesis, lumbar spine."  A request for reconsideration is a request from a claimant for the VA to reconsider one of its decisions that has not yet become final.  See VA Manual M21-1, III.ii.2.F.1.a.  The claim was then adjudicated in the February 2014 rating decision.  As a result, the July 2012 rating decision was not final, and the Veteran subsequently perfected an appeal of this decision.  

Therefore, the issue on appeal is entitlement to a higher initial rating for the lumbar spine condition from September 25, 2003.  Although the Veteran also perfected an appeal for an effective date earlier than May 28, 2013, the Board will consider whether an effective date earlier than September, 25, 2003, is warranted.  The Veteran also appealed the effective dates assigned to his fecal incontinence and bilateral lower extremity radiculopathy.  However, as these conditions are all neurologic abnormalities associated with his lumbar spine condition, the Board will consider whether initial ratings prior to May 28, 2013, are warranted.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (indicating that neurologic abnormalities associated with a spine condition are to be separately rated).  By the same logic, consideration of effective dates for these neurologic abnormalities prior to September 25, 2003, is not warranted because they are effectively part of the issue of whether an effective date earlier than September 25, 2003, is warranted for the lumbar spine.

The Veteran also appealed a June 2015 rating decision which denied service connection for hypertension, a mouth condition, a sleep condition, and a psychiatric condition.  It also denied a TDIU and declined to reopen a previously denied claim for service connection for tinnitus.

In a July 2015 statement, the Veteran indicated that he wanted a Board hearing.  However, he subsequently indicated on his VA Form 9 substantive appeal that he did not want a Board hearing.  In a recent submission, his attorney also waived the opportunity for further argument.  Therefore, the Board will proceed without a hearing.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C § 7107(a)(2) (2012).

The issue of entitlement to service connection for a dental condition has been raised by the record in an April 2007 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b).

The issues of a higher initial rating for fecal incontinence and entitlement to a separate rating for urinary incontinence are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Hypertension is not etiologically related to service.

2.  The Veteran does not have a currently diagnosed mouth condition.

3.  The Veteran does not have a separately diagnosed sleep condition.

4.  Depressive disorder is etiologically related to DDD, spondylolisthesis, and associated neurologic abnormalities of the lumbar spine.

5.  The Veteran did not appeal a March 2010 rating decision which denied service connection for tinnitus, and evidence received since that decision does not relate to a previously unestablished element of the claim and does not raise a reasonable possibility of substantiating the claim.

6.  Service connection for a back condition was denied in an unappealed March 2001 rating decision, and the Veteran filed a new claim for service connection for a back condition on September 25, 2003.

7.  Throughout the appeal period, lumbar spine DDD and spondylolisthesis was manifested by no more than 50 degrees of forward flexion, and the Veteran was not capable of performing repetitive range of motion testing.  Unfavorable ankylosis was not shown at any time.

8.  Prior to May 28, 2013, right lower extremity radiculopathy resulted in moderate incomplete paralysis; from that date, it resulted in moderately severe incomplete paralysis.

9.  Prior to May 28, 2013, left lower extremity radiculopathy resulted in mild incomplete paralysis; from that date, it resulted in moderately severe incomplete paralysis.

10.  Lumbar spine DDD and spondylolisthesis, as well as bilateral lower extremity radiculopathy, precluded the Veteran from obtaining or maintaining substantially gainful employment as of May 1, 2004. 



CONCLUSIONS OF LAW

1.  The criteria for service connection for hypertension have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).

2.  The criteria for service connection for a mouth condition have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017).

3.  The criteria for service connection for a sleep condition have not been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303 (2017).

4.  The criteria for service connection for depressive disorder have been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.303, 3.310 (2017).

5.  The March 2010 rating decision which denied service connection for tinnitus is final, and new and material evidence has not been received to reopen the claim.  38 U.S.C.A. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.200, 20.302, 20.1103 (2017).

6.  The criteria for an effective date earlier than September 25, 2003, for the grant of service connection for DDD and spondylolisthesis of the lumbar spine have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.160(d), 3.400, 20.1103 (2017).

7.  The criteria for an initial 40 percent rating for lumbar spine DDD and spondylolisthesis have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017).

8.  The criteria for an initial 20 percent rating for right lower extremity radiculopathy have been met prior to May 28, 2013; from that date, the criteria for an initial 40 percent rating have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.120, 4.124a, Diagnostic Code 8520 (2017).

9.  The criteria for an initial 10 percent rating for left lower extremity radiculopathy have been met prior to May 28, 2013; from that date, the criteria for an initial 40 percent rating have been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.120, 4.124a, Diagnostic Code 8520 (2017).

10.  The criteria for a TDIU have been met from May 1, 2004.  38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. § 1110.  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a) (2017).

A.  Hypertension

Post-service treatment records reflect a diagnosis of hypertension.  Therefore, element (1), a current disability, has been met.  However, service treatment records do not show any complaints, treatment, or diagnoses of hypertension during service.  During the Veteran's October 1954 separation examination, blood pressure was 114 (systolic) / 79 (diastolic).  For VA rating purposes, hypertension means diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.  38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1).  There is also no indication that hypertension manifested within one year of the Veteran's separation from service.  Rather, the first indications of hypertension were many years after his discharge, and he has not presented any evidence to indicate that hypertension was otherwise present during service or is otherwise etiologically related to such service.  Therefore, element (2) has not been met, and service connection is not warranted.

B.  Mouth Condition

In his October 2014 VA Form 21-526EZ, the Veteran listed "mouth condition" as a disability for which he was seeking benefits.  The Board has reviewed the evidence of record, including the Veteran's VA treatment records, private treatment records, examination reports and lay statements, but it cannot discern any diagnosed mouth condition or specific symptoms of such a condition.  There is also no indication of a mouth condition in service.

As noted above, the Board has referred a claim for service connection for a dental condition to the AOJ, and that criteria for service connection for a dental condition, whether for treatment or compensation purposes, differ from the criteria for general service connection.  With respect to the current claim regarding the mouth, there is no evidence regarding a current condition or an-inservice incurrence of a condition.  Therefore, service connection is not appropriate.

C.  Sleep Condition

The Veteran's VA and private treatment records do not reflect any specific diagnosis of a sleep condition.  Rather, private treatment records dated March 2009 only show a diagnosis of "sleep disturbance."  In an August 2016 disability benefits questionnaire (DBQ), a private clinician stated that chronic sleep impairment was among the symptoms associated with diagnosed depressive disorder.  Based on this evidence, the Board finds that a current sleep-related disability has not been shown.  Rather, sleep impairment is merely a manifestation of depressive disorder which, as discussed below, will itself be service-connected.  Service connection for a sleep condition is not warranted.


D.  Depressive Disorder

The Veteran has not asserted that depressive disorder is associated with his period of active service.  Rather, he contends that it is associated with his service-connected disabilities.

Service connection is warranted for a disability which is proximately due to, aggravated by, or the result of a service-connected disease or injury.  38 C.F.R. § 3.310 (2017).  A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997).

In an August 2016 opinion, a private clinician diagnosed the Veteran with depressive disorder and stated that the condition was caused by the Veteran's lumbar spine DDD, radiculopathy, and fecal incontinence.  He explained that there was a body of literature detailing the connection between medical issues and complaints for depressive disorder, and he attached some of that literature to his opinion.

There is no competent evidence to refute this conclusion or to otherwise indicate that depressive disorder is not associated with the Veteran's service-connected disabilities.  Therefore, service connection for depressive disorder is warranted.

II.  New and Material Evidence

Historically, the Veteran was denied service connection for tinnitus in a March 2010 rating decision, which he did not appeal.  The bases of the denial were that there was no incurrence of tinnitus shown in service, and there was no link between the Veteran's current tinnitus and service.

Generally, a claim that has been denied by an unappealed RO decision or an unappealed Board decision may not thereafter be reopened.  38 U.S.C. §§ 7104(b), 7105(c).  An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed.  38 U.S.C. § 5108. 

"New" evidence means evidence not previously submitted to agency decisionmakers, and "material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  This is a "low threshold" in which the phrase "raises a reasonable possibility" should be interpreted as "enabling rather than precluding reopening."  Shade v. Shinseki, 24 Vet. App. 110, 121 (2010).  The credibility of the newly-submitted evidence is presumed, although not blindly accepted as true if patently incredible.  Justus v. Principi, 3 Vet. App. 510 (1992).

Since the prior final rating decision, additional evidence has been received, including VA treatment records and examination reports, private treatment records and examination reports, and statements from the Veteran.  However, none of this evidence discusses tinnitus in any significant way.  Beyond the Veteran's October 2014 VA Form 21-526EZ which lists tinnitus as a disability for which benefits are being sought, there is nothing addressing either the onset or etiology of tinnitus.  Therefore, new and material evidence has not been received, and the claim is not reopened.

III.  Earlier Effective Date

Section 5110(a), Title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later."

As noted above, this appeal arises out of a July 2012 rating decision which granted service connection for the lumbar spine condition effective from September 25, 2003.  A review of the claims file shows that the Veteran filed a claim for service connection on September 25, 2003.  See September 2003 VA Form 21-4138 ("This is a request or claim for service connection for a back condition...").

He had previously been denied service connection for a back condition in a March 2001 rating decision.  He did not perfect an appeal of this denial, and therefore it was final.  Because the Veteran filed his request to reopen this previously denied claim on September 25, 2003, that is the correct effective date for the grant of service connection.  38 C.F.R. § 3.400(r) (with respect to claims to reopen, the effective date for an award of benefits will be the date of the new claim or the date entitlement arose, whichever is later).  The U.S. Court of Appeals for Veterans Claims (Court) held in Sears v. Principi, 16 Vet. App. 244, 248 (2002), that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim."  See also Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the Veteran first sought to reopen his claim).

IV.  Increased Ratings

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2017).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating."  See Fenderson v. West, 12 Vet. App 119 (1999).

A.  Lumbar Spine

The Veteran's lumbar spine DDD and spondylolisthesis is rated under Diagnostic Code (DC) 5003-5242.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  DC 5003 indicates that degenerative arthritis will be rated based upon limitation of motion of the affected joint.  DC 5242 is contained within the General Rating Formula for Diseases and Injuries of the Spine, found in 38 C.F.R. § 4.71a.  The Veteran was assigned a 20 percent rating prior to May 28, 2013, and a 40 percent rating thereafter.

Under the General Rating Formula, a higher 40 percent rating is assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine.  A higher 50 percent rating is assigned when there is unfavorable ankylosis of the entire thoracolumbar spine.

Generally, ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure.").

Note (5) of the General Rating Formula states that, for VA compensation purposes, unfavorable ankylosis is a condition in which the thoracolumbar 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 of 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 a neutral position (zero degrees) always represents favorable ankylosis.

The only evidence from the period prior to May 28, 2013, which specifically addresses range of motion of the lumbar spine is a December 2010 VA examination.  During that examination, the Veteran had 50 degrees of forward flexion.  However, the examiner noted that testing of repetitive motion could not be performed due to the Veteran's discomfort.  He also noted that the Veteran walked rather guardedly.  In light of these limitations, the Board finds that the overall disability picture of the Veteran's lumbar spine prior to May 28, 2013, is more consistent with the higher 40 percent rating, notwithstanding his 50 degrees of forward flexion on initial testing.  38 C.F.R. §§ 4.3, 4.6.

However, a higher 50 percent rating is not warranted at any point during the appeal period.  As noted above, this rating is only assigned when there is unfavorable ankylosis of the lumbar spine.  Here, neither the December 2010 VA examination nor the May 2013 Disability Benefits Questionnaire (DBQ) submitted by the Veteran demonstrate any ankylosis whatsoever.  There is certainly no indication from either of these reports, or from the Veteran's VA treatment records, that he has fixation of the spine resulting in any of the manifestations listed above in Note (5).

B.  Radiculopathy

The Veteran is also assigned separate 10 percent ratings under DC 8720 from May 28, 2013, for left and right lower extremity radiculopathy associated with his lumbar spine condition.

DC 8720 addresses neuralgia of the sciatic nerve and is based upon DC 8520, which addresses paralysis of the sciatic nerve.  Disability ratings of 10, 20, 40, and 60 are warranted, respectively, for mild, moderate, moderately severe, and severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve.  A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost.  38 C.F.R. § 4.124a, DC 8520.

In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.

Based on the evidence, the Board finds that a 10 percent rating is warranted for the left lower extremity prior to May 28, 2013.  VA treatment records dating from January 2004 reflect complaints of paresthesias, numbness, and burning pain.  Objectively, private treatment records dated March 2004 show that reflexes were absent and toe weakness was present.  In September 2005, strength, sensation and reflexes were all normal, though the ankle reflex was absent.  VA records dated May 2006 noted sensation was intact on the plantar foot but absent in the dorsal foot.  In September 2008, the Veteran denied any paresthesias, but there was some decreased sensation to touch.  Overall, these findings are consistent with "mild" incomplete paralysis.  See VA Manual M21-1, III.iv.4.N.4.c. (describing mild incomplete paralysis as sensory deficits that are lower graded or affecting a small area, and/or a very minimal reflex or motor abnormality).

From May 28, 2013, a 40 percent rating is warranted.  The DBQ generated on that date recorded hip and ankle plantar flexion of 3/5.  Knee, ankle dorsiflexion, and great toe strength was 2/5.  Knee reflexes were 1+.  Subsequent VA records from October 2013 also noted that the foot was insensate to monofilament testing.  These findings, particularly motor strength, reflect a significant level of impairment consistent with moderately severe incomplete paralysis.  Id. (describing moderately severe incomplete paralysis as motor and/or reflex impairment at a grade reflecting a high level of limitation or disability).

A 20 percent rating is warranted for the right lower extremity prior to May 28, 2013, as there is evidence that the right side was worse than the left.  VA records from January 2004 noted that paresthesias were greater on the right side.  Private records from June 2004 noted some foot drop and lost plantar reflex on the right.  VA records from July 2005 noted that the Veteran could not dorsiflex his right foot.  In September 2005, right ankle strength was 3/5 and there was decreased position sense in the right toes.  These findings are more consistent with "moderate" incomplete paralysis.  Id.

From May 28, 2013, a 40 percent rating is warranted for the right lower extremity.  The private DBQ from that date documented hip strength of 4/5, knee and ankle plantar flexion strength of 3/5, great toe strength of 2/5, and ankle dorsiflexion of 1/5.  Knee reflexes were also 1+.  Subsequent VA records from October 2013 also noted that the foot was insensate to monofilament testing.  Similar to the left leg impairment for this period, the level of motor strength impairment appears consistent with moderately severe incomplete paralysis.

V.  TDIU

The Veteran's claim for a TDIU is part and parcel of his claims for increased ratings.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Therefore, the appeal period from September 25, 2003, which is applicable to the above initial rating claims is also applicable to the TDIU.

A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017).

Here, the Veteran is service-connected for lumbar spine DDD and spondylolisthesis and bilateral lower extremity radiculopathy from September 25, 2003.  Because these conditions have a common etiology, they are considered to be one disability for TDIU purposes, and therefore the Veteran meets the schedular criteria for a TDIU throughout the appeal period.  Notably, a rating and effective date have not yet been assigned for the above grant of depressive disorder.

The central inquiry is determining whether a TDIU is warranted is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).  Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted.  See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In his December 2014 TDIU application, the Veteran indicated that he had one year of high school level education.  Information obtained from his employer shows that he worked as a janitor from 1965 through April 2004, and that he stopped working due to disability.

With regard to functional impairment, a July 2016 private physician stated that, as a result of spine and neurologic problems, the Veteran could consistently stand, walk, and sit for less than 2 hours without rest.  He could consistently lift and carry less than 10 pounds.  He would need to miss or leave early from work 3 or more times a month.  He would need more than 1 extra break every day in addition to morning, lunch, and afternoon.

A March 2017 private physician determined that the Veteran was unable to stand for 10 minutes without needing to lean on something.  He was only able to slowly walk for 15 minutes unassisted.  He could sit for 45 minutes at a time.  He was unable to lift and carry more than 5 pounds at a time.  He would miss or leave work early 10 or more days a month, would need two additional breaks per day, and would not stay focused more than 3 days a month.  The Veteran reported that he was not able to sit in one position for very long before he must reposition himself.

The Board concludes that the Veteran's lumbar spine condition and associated radiculopathy would prevent him from performing the duties of his previous position as a janitor as well as the duties of any similar position for which he may otherwise be qualified.  In making this determination, the Board recognizes that janitorial work is largely physical in nature, and the limitations identified above would preclude the Veteran from effectively performing that work.  His 

Therefore, a TDIU is warranted.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that applicable regulations place responsibility for the ultimate TDIU determination on the adjudicator, not a medical examiner).  Because the Veteran's former employer indicated that he stopped working in April 2004 without specifying an exact date, the Board will grant the TDIU effective from May 1, 2004.


ORDER

Service connection for hypertension is denied.

Service connection for a mouth condition is denied.

Service connection for a sleep condition is denied.

Service connection for depressive disorder is granted.

The request to reopen a previously denied claim for service connection for tinnitus is denied.

An effective date earlier than September 25, 2003, for the grant of service connection for DDD and spondylolisthesis of the lumbar spine is denied.

An initial 40 percent rating for DDD and spondylolisthesis of the lumbar spine is granted.

Prior to May 28, 2013, an initial 20 percent rating for right lower extremity radiculopathy is granted; from that date, an initial 40 percent rating is granted.

Prior to May 28, 2013, an initial 10 percent rating for left lower extremity radiculopathy is granted; from that date, an initial 40 percent rating is granted.

A TDIU is granted from May 1, 2004.


REMAND

With respect to the issues of a higher initial rating for fecal incontinence and entitlement to a separate rating for urinary incontinence, the Board finds that additional development is necessary.

Initially, the Board notes that the Veteran has had ongoing treatment for urinary incontinence since 2004.  VA records dated June 2004 noted a diagnosis of urinary incontinence alongside a diagnosis of back pain.  However, there is no clear opinion attributing the Veteran's urinary incontinence to his lumbar spine condition.  Indeed, the May 2013 DBQ submitted by the Veteran noted fecal incontinence as an associated condition, but did not mention urinary incontinence.  Therefore, an examination is necessary to determine whether the urinary condition is associated with the lumbar spine disability.

In addition, the Veteran's fecal incontinence is rated under DC 7332.  The rating criteria for this condition contemplate the use of a pad for involuntary bowel movements.  Urinary incontinence is rated under voiding dysfunction as defined in 38 C.F.R. § 4.115a.  These rating criteria contemplate the use of absorbent materials for urine leakage, and the rate of replacement for these materials is relevant to the assigned rating.  In order to obtain an accurate assessment of each condition, examinations are necessary to determine the extent, if any, to which the Veteran uses pads for his fecal incontinence versus absorbent materials for urinary incontinence.



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Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA examination to determine the nature and severity of his urinary incontinence.  The claims file must be made available to the examiner, who should indicate in his/her report that the file was reviewed.  All indicated tests and studies should be completed, and a complete history should be obtained from the Veteran.  The examiner must then answer the following questions:

a.  Is the Veteran's urinary incontinence a neurologic abnormality associated with his lumbar spine degenerative disc disease and spondylolisthesis?  Why do you say so?

b.  Does the Veteran's urinary incontinence require the use of absorbent materials?  If so, how often must those absorbent materials be changed each day?  In answering this question, the examiner should, if possible, distinguish absorbent materials used for urinary incontinence from pads used for fecal incontinence.

The examiner must provide a complete explanation for all opinions.  If the examiner is unable to render the requested opinions without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge of the medical community, or another reason.

2.  Schedule the Veteran for a VA examination to determine the severity of his fecal incontinence.  The claims file must be made available to the examiner, who should indicate in his/her report that the file was reviewed.  All indicated tests and studies should be completed, and a complete history should be obtained from the Veteran.  

The examiner must then assess whether the Veteran's fecal incontinence results in no leakage; constant slight leakage or occasional moderate leakage; occasional involuntary bowel movements necessitating wearing of a pad; extensive leakage and fairly frequent involuntary bowel movements; or a level of incontinence equal to complete loss of sphincter control.

In making this determination, the examiner should, if possible, distinguish pads used for fecal incontinence from absorbent materials used for urinary incontinence.

The examiner must provide a complete explanation for all opinions.  If the examiner is unable to render the requested opinions without resorting to speculation, he/she must state whether there is inadequate factual information, whether the question falls beyond the limits of medical knowledge of the medical community, or another reason.

3.  Following completion of the above, readjudicate the claims for a higher initial rating for fecal incontinence and entitlement to a separate rating for urinary incontinence.  If any claim is not granted in full, send the Veteran and his representative a supplemental statement of the case (SSOC), and allow them an appropriate time to respond before returning the issue(s) to the Board for further appellate consideration.

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. §§ 5109B, 7112 (2012).



______________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs