Citation Nr: 19190836 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 13-23 357 DATE: December 3, 2019 ORDER Entitlement to an initial 40 percent rating for neurogenic urinary frequency and incontinence is granted for the period prior to April 11, 2019, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 40 percent for neurogenic urinary frequency and incontinence is denied for the period beginning on April 11, 2019. Entitlement to an initial rating in excess of 40 percent for cervical spine degenerative arthritis, stenosis, and intervertebral disc syndrome (IVDS) is denied. Entitlement to a separate 10 percent rating for a balance disability related to cervical spine degenerative arthritis, stenosis, and IVDS is granted. Entitlement to an initial 10 percent rating for left ankle strain, from October 17, 2011 to June 9, 2016, is granted. Entitlement to an initial 10 percent rating for right ankle strain, from October 17, 2011 to June 9, 2016, is granted. Entitlement to a 20 percent rating for left ankle strain, beginning June 10, 2016 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a 20 percent rating for right ankle strain, beginning June 10, 2016 is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a right ear disability is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Throughout the appellate period, the Veteran’s urinary frequency manifested in daytime voiding intervals of less than one hour, and he did not experience urinary leakage requiring an appliance or absorbent materials which must be changed more than 4 times per day. 2. The Veteran’s cervical spine disability manifested in flexion of 10 degrees with additional function loss and IVDS with incapacitating episodes having a total duration of at least 4 weeks but than 6 weeks; but did not manifest in ankylosis. 3. The Veteran’s cervical spine disability manifested in a balance disability. 4. Taking pain into account, the Veteran’s bilateral ankle strain manifested in moderate limitation of motion from October 17, 2011 to June 9, 2016. 5. Taking pain and instability into account, the Veteran’s bilateral ankle strain manifested in marked limitation of motion, beginning June 10, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 40 percent rating for neurogenic urinary frequency prior to April 11, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.32, 4.115a, 4.115b, Diagnostic Code 7542. 2. The criteria for entitlement to a rating in excess of 40 percent for neurogenic urinary frequency for the period beginning April 11, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.32, 4.115a, 4.115b, Diagnostic Code 7542. 3. The criteria for entitlement to a rating in excess of 40 percent for cervical spine degenerative arthritis, stenosis, and IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235-5243. 4. The criteria for entitlement to separate 10 percent rating for a balance disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Note (1), 4.87, Diagnostic Code 6204. 5. The criteria for entitlement to an initial 10 percent rating for left ankle strain, from October 17, 2011 to June 9, 2016, have been met. 38 U.S.C. §§ 1155, 5103(a), 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271. 6. The criteria for entitlement to an initial 10 percent rating for right ankle strain, from October 17, 2011 to June 9, 2016, have been met. 38 U.S.C. §§ 1155, 5103(a), 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271. 7. The criteria for entitlement to a 20 percent rating for left ankle strain, beginning June 10, 2016, have been met. 38 U.S.C. §§ 1155, 5103(a), 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271. 8. The criteria for entitlement to a 20 percent rating for right ankle strain, beginning June 10, 2016, have been met. 38 U.S.C. §§ 1155, 5103(a), 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1990 to April 1998. In October 2015, the Board of Veterans’ Appeals (Board) denied claims for service connection for a right ear disability and to reopen a previously denied claim for bilateral hearing loss. The Veteran appealed the denials, and in September 2016, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand relative to those issues. The Board last remanded the matters on appeal in November 2018. The Regional Office (RO) increased the Veteran’s initial cervical spine disability rating to 40 percent in a May 2017 rating decision; and the RO increased the Veteran’s urinary frequency and incontinence rating to 40 percent, effective April 2019, in a June 2019 rating decision. As these favorable decisions represent partial grants for the increased rating claims, the claims remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). During the period on appeal, evidence of record shows the Veteran has a balance disability related to increased rating claim for his cervical spine disability. Therefore, the issue of a separate rating for a balance disability was added to the appeal in connection with the cervical spine claim. The Veteran has been assigned a 100 percent combined evaluation, with no single disability rated as 100 percent for any individual disability, since May 10, 2016. The Board has also considered a total disability rating based on individual unemployability (TDIU) prior to that date, as a claim for increased compensation can encompass a claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). The evidence does not suggest, and the Veteran has not specifically asserted, a claim for TDIU prior to that date. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If the disability has undergone varying and distinct levels of severity throughout the entire period the increased rating claim has been pending, staged ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. 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). Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. 1. Entitlement to an initial 40 percent rating for neurogenic urinary frequency Diagnostic Code 7542 instructs that the condition should be rated as a voiding dysfunction. See 38 C.F.R. § 4.115(a), Diagnostic Code 7542. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. 38 C.F.R. § 4.115(a). Only the predominant area of dysfunction is considered for rating purposes. Id. For urine leakage, a 20 percent rating is for assignment when the wearing of absorbent materials must be changed less than two times per day. A 40 percent rating is for assignment when the wearing of absorbent materials must be changed two to four times per day. A 60 percent rating is for assignment with the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. Id. For urinary frequency, a 20 percent rating is warranted for daytime voiding intervals between one and two hours, or awakening to void three to four times per night. The maximum 40 percent rating is for assignment with daytime voiding interval less than one hour, or; awakening to void five or more times per night. Id. For obstructed voiding, a 30 percent rating is warranted for urinary retention requiring intermittent or continuous catherization. Id. The Veteran reported urinating three to four times per hour in December 2012, September 2014, September 2015, November 2015, June 2016, and September 2016 private treatment notes. The Veteran was afforded a VA urinary tract examination in December 2016. The Veteran did not require absorbent material for urine leakage. Daytime voiding occurred in intervals of two and three hours, and he woke up three to four times per night to void. The Veteran was afforded a VA urinary tract examination in April 2019. The Veteran did not require absorbent materials. Daytime voiding occurred in intervals of less than one hour, and he woke up 3 to 4 times per night to void. The Board notes the Veteran’s numerous medically documents reports of voiding multiple times per hour during the daytime. The Board has every reason to believe he was offering a truthful account of his experiences to his clinicians in an attempt to receive appropriate medical care, and the Board affords his statements a great deal of probative weight. See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003). Due to consistent reports to medical professionals and probative lay evidence provided by the Veteran throughout the record, the Board finds his urinary frequency most closely approximates an initial 40 percent disability rating for daytime voiding intervals of less than one hour. To that extent, the appeal is granted. In order for the Veteran’s voiding dysfunction to warrant a rating in excess of 40 percent, under 38 C.F.R. § 4.115a, the Veteran’s urinary leakage would require the use of an appliance or wearing of absorbent materials which must be changed more than four times per day. The Veteran’s lay evidence and medical records are negative for evidence that the Veteran required the use of an appliance or absorbent materials. Accordingly, the Board finds that the Veteran is entitled to an initial 40 percent rating, but no higher, for the urinary frequency disability. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 40 percent for cervical spine degenerative arthritis, stenosis, and IVDS The schedular criteria for the rating of spine disabilities evaluates IVDS (preoperatively or postoperatively) either under the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in a higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243. The Veteran’s thoracolumbar spine condition is currently rated as 40 percent disabling under DC 5237 of the General Rating Formula. See 38 C.F.R. § 4.71a, DC 5237. Under the General Rating Formula referenced above, in regard to cervical spine disabilities, a 40 percent rating may be assigned on the basis of unfavorable ankylosis of the entire cervical spine. A 100 percent rating may be assigned on the basis of unfavorable ankylosis of the entire spine. The provisions of DC 5243 described above also apply in this case. “Unfavorable ankylosis” is a condition in which 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. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. According to the formula for rating intervertebral disc syndrome (IVDS), a 40 percent rating requires evidence of 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 rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS. An “incapacitating episode” is defined 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. Id. at Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Note (2). In November 2015 private treatment notes, the Veteran complained of neck pain related to severe degenerative changes and foraminal stenosis of the cervical spine. The Veteran provided a July 2016 private examination and neck conditions disability benefits questionnaire (DBQ). The Veteran reported flare-ups which resulted in limitation of motion and affected the Veteran’s ability to breath. Flexion measured at 10 degrees, repetitive use testing resulted in additional limitation to range of motion, there were objective evidence of pain, and there was localized tenderness or pain on palpation. The Veteran also had abnormal spinal contour due to muscle spasms and guarding. Less movement than normal, excess fatigability, pain on movement, interference with sitting, and interference with standing contributed to functional loss. The Veteran’s IVDS manifested in incapacitating episodes for at least 4 weeks, but less than 6 weeks in the previous 12 months. The Veteran underwent a December 2016 VA examination. He reported flare-ups which resulted in pain, stiffness, spasms, and limitation of motion. Flexion measured at 30 degrees and repetitive use testing did not result in additional limitation to range of motion. Repeated use over time and flare-ups resulted in a decrease in flexion, measured at 10 degrees. Pain, fatigue, weakness, and lack of endurance caused functional loss. The muscle spasms did not result in an abnormal gait or abnormal spinal contour. There was no evidence of ankylosis or neurologic abnormalities apart from radiculopathy. The Veteran’s IVDS did not manifest in incapacitating episodes. The Veteran subsequently underwent a April 2017 VA examination. The Veteran reported flare-ups. Flexion measured at 10 degrees, repetitive use testing resulted in additional functional loss, there were objective evidence of pain, and there was localized tenderness or pain on palpation. Pain, fatigue, weakness, and lack of endurance caused functional loss. The Veteran also had abnormal gait or abnormal spinal contour due to muscle spasms and localized tenderness. Less movement than normal, weakened movement, and disturbance of locomotion contributed to functional loss. There was no evidence of ankylosis. Balance disturbances were noted as neurologic abnormalities related to the cervical spine. The Veteran’s IVDS manifested in incapacitating episodes for at least 4 weeks, but less than 6 weeks, in the previous 12 months. The Veteran was last afforded an April 2019 VA examination. The Veteran reported flare-ups. Flexion measured at 10 degrees, repetitive use testing resulted in additional functional loss, there was objective evidence of pain, and there was localized tenderness or pain on palpation. There was no evidence of ankylosis. Balance disturbances were noted as neurologic abnormalities related to the cervical spine. The Veteran’s IVDS did not manifest in incapacitating episodes. The Veteran’s cervical spine disability is currently rated at 40 percent, and the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 40 percent for a cervical spine disability at any point during the period on appeal. The General Rating Formula applies with or without symptoms such as pain. DeLuca and associated regulations do not apply because a 40 percent evaluation is the maximum allowable disability rating for limitation of motion of the thoracolumbar spine. See Johnston v. Brown, 10 Vet. App. 80 (1997). A higher rating under the General Rating Formula is not warranted unless there is unfavorable ankylosis present. The record is negative for any probative evidence of ankylosis. Thus, the Board finds that a higher rating based on ankylosis is not warranted under the General Rating Formula. See 38 C.F.R. § 4.71a, DCs 5235-5243. The Board also finds no basis for a higher disability rating under DC 5243. While the Veteran was noted to have IVDS, the Veteran’s IVDS did not manifest in incapacitating episodes of 6 weeks during a 12-month period during the period on appeal. Nothing in the medical records indicates prescribed bed rest for duration of 6 weeks or more during the previous year, to warrant a higher disability rating. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating greater than 40 percent for the Veteran’s cervical spine disability. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Note (1) instructs VA to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. The Board notes that service connection has been separately granted for neurological involvement of both upper extremities, and those ratings are not part of the current appeal. The April 2017 and April 2019 VA examinations noted balance disturbance as a neurologic abnormality related the cervical spine disability. In light of positive objective medical evidence of a balance disorder secondary to the Veteran’s service-connected cervical spine disability during an increased rating claim, the Board finds that a separate evaluation for a balance disability is warranted. The symptoms in this case are analogous to occasional, but not more, dizziness, and a separate 10 percent rating under 38 C.F.R. § 4.87, Diagnostic Code 6204 (for peripheral vascular disorders) is granted. 3. Entitlement to increased ratings for left and right ankle strains Under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for rating limitation of motion of the ankle, a 10 percent rating is assigned for moderate limitation of motion; and a 20 percent rating is assigned for marked limitation of motion. That is the maximum schedular rating. Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. The Veteran was afforded a VA examination in February 2012. The Veteran reported bilateral ankle pain due to prolonged standing and walking. Dorsiflexion with pain was measured at 20 bilaterally, and plantar flexion was measured at 45 degrees bilaterally. There was no objective evidence of painful motion. Repetitive use testing did not result in additional functional loss. Excess fatigability contributes to additional function loss in the left and right ankles. There were no objective signs of joint instability or evidence of ankylosis, or arthritis. In December 2014, the Veteran reported occasional instability in his ankles. The Veteran was provided a VA examination in June 2016. The Veteran reported flare-ups, which impacted his ability to run, walk, climb stairs, lift, carry and do weight bearing activities. Dorsiflexion with pain was measured at 10 degrees in the left and right ankles. Plantar flexion with pain was measured at 40 degrees in the left and right ankles. There was tenderness with palpation bilaterally, and repetitive use testing did not result in additional functional loss. There was no deformity or ankylosis. Instability was suspected, but there were no objective findings of instability. In May 2018, the Veteran was afforded a VA examination. The Veteran did not report flare-ups, but his ankles would occasionally roll when he walks. Dorsiflexion with pain was measured at 15 degrees in the left and right ankles. Plantar flexion with pain was measured at 45 degrees in the left and right ankles. There was tenderness with palpation bilaterally, and repetitive use testing did not result in additional functional loss. There was no deformity or ankylosis. Instability was suspected, but there were no objective findings of instability. In April 2019, the Veteran was afforded a VA examination. The Veteran did not report flare-ups. The examiner noted functional loss related to prolonged standing, walking, and running. Dorsiflexion with pain was measured at 12 degrees in the left and 15 degrees in the right ankles. Plantar flexion with pain was measured at 45 degrees in the left and right ankles. There was tenderness with palpation bilaterally, and repetitive use testing did not result in additional functional loss. Pain significantly limited functional ability with repeated use over time bilaterally; dorsiflexion measurements did not decrease, but plantar flexion decreased to 40 degrees in both ankles. There was no deformity or ankylosis. Instability was suspected, and the talar tilt test was positive in both ankles. At the outset, the Board notes the Veteran’s ankles were negative for degenerative arthritis, ankylosis, malunion of the os calcis or astragalus, and astragalectomy throughout the entirety of the period on appeal. Therefore, the Board will only address Diagnostic Code 5271, for limitation of motion, under 38 C.F.R. § 4.71a. Based on the totality of the evidence, the Board finds the Veteran’s symptomatology warrants a 10 percent evaluation for limitation of motion in both the right and left ankles prior to June 10, 2016. Prior to June 10, 2016, the Veteran’s range of motion measurements showed relatively slight loss of motion motion in both ankles. That said, the Board will assign 10 percent evaluations in view of 38 C.F.R. § 4.59, accepting as true the Veteran’s complaints of actually painful ankles. The range of motion measurements beginning in June 10, 2016 show moderate limitation of motion in both the right and left ankles in dorsiflexion. In addition, the Veteran reported functional impairment caused by flare-ups in June 2016. In the June 2016, May 2018, and April 2019, the examiners noted tenderness with palpation and suspected instability. In April 2019, the instability was objectively found with the talar tilt test. The overall disability picture is between moderate and marked in degree. Resolving all doubt in the Veteran’s favor, the Board awards a 20 percent schedular evaluation for his service-connected right and left ankle disabilities beginning on June 10, 2016 based upon marked limitation of motion. See 38 C.F.R. §§ 4.40, 4.45. 20 percent is the maximum allowable schedular rating for ankle limitation of motion. REASONS FOR REMAND 1. Entitlement to service connection for a right ear disability is remanded. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was last afforded a VA ear conditions examination in April 2019. The examiner provided a negative nexus opinion, and, in the rationale, noted that “if the veteran is truly having intermittent deafness, it would require additional testing.” Due to the examiner finding that additional testing is necessary to address the all the evidence, the Board finds the rationale inadequate for the right ear disability and bilateral hearing loss claims. Upon remand, the Veteran should be provided with a new VA examination with any testing deemed necessary to address the Veteran’s lay contentions of intermittent deafness. The matters are REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to the claim, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)). 2. Schedule the Veteran for a VA ear or audiology examination to determine the nature and etiology of any right ear disability and bilateral hearing loss. A full medical history should be documented in the examination report. The claims file should be made available to the examiner. All tests and studies deemed necessary by the examiner must be performed to address the Veteran’s contention of intermittent deafness. The examiner is asked to address the following: (a.) Provide a current diagnosis for the Veteran’s right ear condition manifested at any time during the period on appeal; (b.) If the Veteran does not now have, but previously had, any diagnosed condition, when did that condition resolve; and (c.) For each diagnosed right ear or hearing loss disorder, is it at least as likely as not (a 50 percent or greater probability) that the disorder had its onset during or is otherwise related to any event or injury during active duty? In answering all questions, please articulate the reasoning underpinning the conclusions. That is, (1) identify what facts and information--whether found in the record or outside the record--support the opinion, and (2) explain how that evidence justifies the opinion. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.