Citation Nr: 19123779 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 17-48 699 DATE: April 2, 2019 ORDER A higher initial rating in excess of 10 percent for lumbar spine degenerative joint disease with compression deformity is denied. The appeal to reopen service connection for a fracture of the coccyx is denied. The appeal to reopen service connection for fecal incontinence is granted. Service connection for fecal incontinence is denied. Service connection for bladder incontinence is denied. Service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran had at least 70 degrees forward flexion in the thoracolumbar spine, at a combined range of motion of at least 160 degrees, with consideration of pain, painful motion, repetitive motion, and functional loss due to pain. There was no muscle spasm or guarding on examination. 2. In an unappealed December 2003 rating decision, the RO denied service connection for a fracture of the coccyx and fecal incontinence. 3. The Veteran has not submitted new and material evidence to reopen service connection for a fracture of the coccyx. 4. New and material evidence has been received to reopen service connection for fecal incontinence. 5. Fecal incontinence was not incurred during active service. 6. Bladder incontinence was not incurred during active service. 7. Anxiety disorder was incurred in service. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating in excess of 10 percent for degenerative joint disease with compression deformity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Plate V, 4.71, Diagnostic Code 5242 (2018). 2. The December 2003 rating decision which denied service connection for a fracture of the coccyx and fecal incontinence is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1103 (2018). 3. New and material evidence has not been received to reopen service connection for a fracture of the coccyx. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105 (2018). 4. The evidence received subsequent to the December 2003 decision is new and material to reopen service connection for fecal incontinence. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156 (a), 3.303, 20.1105 (2018). 5. The criteria for service connection for fecal incontinence have not been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 6. The criteria for service connection for bladder incontinence have not been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018).]. 7. The criteria for service connection for anxiety disorder have been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1974 to December 1974. 1. Entitlement to a higher initial rating for lumbar spine degenerative disc disease 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 (2018). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505. Here, the Veteran’s symptoms related to his lumbar spine condition have not significantly changed and a uniform rating is warranted throughout the appeal period. Under Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involve; however, when the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned with x-ray evidence of involvement of two or more major joints; a 20 percent rating is assigned with x- ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2018). The schedular criteria for the rating of spine disabilities evaluates degenerative arthritis of the spine either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, 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. Under the General Formula, a 10 percent evaluation is assigned with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion greater than 120 degrees but not greater than 235 degrees; or, with muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A higher 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine at 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The General Formula applies for rating purposes with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. When rating according to the General Formula, any associated objective neurologic abnormalities are rated separately under their respective diagnostic codes. 38 C.F.R. § 4.71a, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Note (2). August 2013 and July 2017 VA examinations of the spine show that the Veteran did not report flare-ups of pain. In August 2013, the Veteran had 70 degrees forward flexion with pain at 70 degrees, 30 degrees extension with pain at 30 degrees, 15 degrees right lateral flexion, 15 degrees left lateral flexion, 25 degrees right lateral rotation, and 25 degrees left lateral rotation with no objective evidence of painful motion on lateral flexion and rotation. In July 2017, he had 90 degrees forward flexion, 10 degrees extension, 20 degrees right lateral flexion, 20 degrees left lateral flexion, 30 degrees right lateral rotation, and 30 degrees left lateral rotation. Pain was noted during the examination but did not result in or cause functional loss. Pain was noted with forward flexion and right and left lateral flexion. The Veteran was able to complete repetitive testing with no change in range of motion during August 2013 and July 2017 examinations, and with no additional limitation in range of motion of the thoracolumbar spine. The August 2013 VA examiner reported that the Veteran did have functional loss after repetitive use which included less movement than normal and pain on movement. Functional loss was not indicated in July 2017. The Veteran did not have localized tenderness or pain to palpation in the thoracolumbar spine, guarding, or muscle spasm. There was no ankylosis. Both VA examinations show that the Veteran had normal strength, reflex, and sensory examinations of the lower extremities with no muscle atrophy. There was no radiculopathy or other neurological abnormalities. The July 2017 VA examiner identified a diagnosis of intervertebral disc syndrome but opined that the Veteran did not have any episodes of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician in the past12 months. The Veteran used a cane for stability due to back pain while ambulating. A CT and MRI showed stable compression deformities at T11-L1, stable moderate to severe facet arthropathy, and moderate L5-S1 disc disease. His back disability restricted heavy manual labor, lifting above 20 pounds, use of ladders, walking for longer than 100 feet, and prolong standing. The Board finds that a rating in excess of 10 percent is not warranted. A 20 percent rating is assigned with forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a combined range of motion not greater than 120 degrees; or, with muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Board finds that the evidence does not support such a finding. VA examinations show that the Veteran had at least 70 degrees forward flexion in the thoracolumbar spine, with pain beginning at 70 degrees with consideration of painful motion, repetitive motion, and functional loss due to pain. VA examinations show that the Veteran had at least 10 degrees extension, at least 15 degrees right and left lateral flexion, and at least 25 degrees left and right lateral rotation without pain. Thus, he had a combined range of motion of at least 160 degrees. VA examinations show that there was no muscle spasm or guarding. For these reasons, the Board finds that the Veteran has not met or approximated the criteria for a higher initial 20 percent rating for his lumbar spine disability at any time during the appeal. The Veteran has not had evidence of ankylosis at any time during the appeal period. While he has been diagnosed with intervertebral disc syndrome, the July 2013 VA examination and VA treatment records show that he has not been prescribed bed rest for a total duration of at least two weeks during any 12-month period to warrant a rating based on incapacitating episodes due to intervertebral disc syndrome. For these reasons, the Board finds a rating in excess of 10 percent is not warranted for the Veteran’s lumbar spine disability. NEW AND MATERIAL EVIDENCE The Board is required to determine whether new and material evidence has been received before it can reopen a claim and readjudicate service connection or other issues on the merits. See Barnett v. Brown, 83 F.3d 1380, 1383-1384 (Fed. Cir. 1996). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (2018). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing 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 prior final 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). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). Further, RO decisions become final “only after the period for appeal has run,” and “[a]ny interim submissions before finality must be considered by the VA as part of the original claim.” Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). If new and material evidence is received within one year after the date of mailing of a RO decision, it may be “considered as having been filed in connection with the claim which was pending at the beginning of the appeal period that prevents an initial determination from becoming final.” King v. Shinseki, 23 Vet. App. 464, 466-67 (2010). The RO previously denied claims of service connection for a fracture of the coccyx and fecal incontinence in December 2003 rating decision. The Veteran was provided notice of that decision in January 2004. He did not appeal that rating decision and did not submit any evidence or correspondence within one year of notification of the denial. The Board finds, therefore, that the denial of service connection in December 2003 was final. 2. Whether new and material evidence has been submitted to reopen service connection for a fracture of the coccyx The December 2003 rating decision shows that the claim for service connection for a fracture of the coccyx was denied because examinations of the lower sacral area in service showed no fracture of the coccyx, and there was no evidence of symptoms, treatment, or diagnosis of a fracture of the coccyx from discharge to present. Since the December 2003 denial, the Veteran has not submitted any additional evidence relating to the claimed fracture of the coccyx, or fracture tailbone. VA treatment records and SSA medical records received since the December 2003 denial do not refer to any fracture of the coccyx or history of such. An August 2013 VA examination of the spine similarly does not show any fracture of the coccyx or residuals. For these reasons, the Board finds that the Veteran has not submitted new and material evidence which addresses service connection for a fracture of the coccyx, and the appeal to reopen service connection for a fracture of the coccyx is denied. 3. Whether new and material evidence has been submitted to reopen service connection for fecal incontinence The December 2003 rating decision shows that the claim for fecal incontinence was denied because it was not related to or the result of a pilonidal cyst or pilonidal cystectomy in service. A VA examination noting evidence of fecal leakage was considered in the decision. The RO requested a new VA examination in August 2013 to address the Veteran’s claim of fecal incontinence due to military sexual assault during a medical examination in service. The Board finds that the Veteran triggered VA duty to assist when a new examination was ordered to consider the alternative theory of entitlement. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Accordingly, the Board finds that new and material evidence has been received to reopen service connection for fecal incontinence. See 38 C.F.R. § 3.156. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 4. Entitlement to service connection for fecal incontinence The Veteran contends that fecal incontinence is related to a sexual assault which occurred during an in-service medical examination. A prior November 2003 VA examination identified evidence of fecal leakage. While the August 2013 VA examiner was unable to verify fecal leakage on examination, he did identify anal/perianal issues. For these reasons, the Board finds that the Veteran has a current disability related to claimed fecal incontinence. The Board finds that the preponderance of the evidence weighs against finding that fecal incontinence was incurred in service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records show that the Veteran was treated for an infected pilonidal cyst in service, with a cystectomy performed prior to separation; however, he did not identify any symptoms of fecal incontinence in service. Although he more recently reported, in conjunction with his claim, that he had fecal leakage since an in-service sexual assault during an examination for his pilonidal cyst, the Board finds that his report of having symptoms of fecal incontinence since service is not credible. In that regard, his December 1974 separation examination clearly documented a pilonidal cystectomy in the process of healing but did not identify any complaints of fecal incontinence. VA treatment records show that the Veteran had a colonoscopy on June 2003 and was found to have a polyp and hemorrhoids, but did not report fecal incontinence at that time. In October 2003, the Veteran reported bleeding from hemorrhoids with leakage from the rectum, and this was the earliest evidence of fecal incontinence of record. The Veteran was treated for his hemorrhoids. VA treatment records dated from 2007 to May 2012, show that the Veteran denied having bowel or bladder dysfunction on multiple occasions during treatment, to include after a March 2009 colonoscopy, and after surgery for a penile prosthesis in June 2010. He did report bowel incontinence in May 2012, but again denied bowel or bladder incontinence in treatment records dated from 2013 to 2017. The Board finds that the statements which were provided for treatment purposes are more probative than those provided for compensation purposes. The Board notes that objective psychiatric testing conducted during a July 2013 VA examination and psychiatric examination associated with SSA records indicated purposeful exaggeration of symptoms and malingering for compensation purposes, bringing in to question the credibility of Veteran’s self-report of symptoms as it relates to his claim. The Board finds that although the Veteran had some evidence of fecal incontinence in 2003 and 2012, the weight of the evidence shows that those symptoms were not present since service. The evidence of record does not establish a nexus between claimed fecal incontinence and service, to include an in-service sexual assault. A November 2003 VA examination did not include an opinion as to whether fecal incontinence was due to a sexual assault in service. An August 2013 VA examiner opined that it was less likely than not that the Veteran’s current complaints of fecal leakage were a result of the purported in-service events. The examiner provided sound reasoning for the opinion based on a review of the record, to include a separation examination which did not mention rectal or anal complaints, a colonoscopy in 2003 which did not document sphincter tone abnormalities or leakage, and the later identification of poor sphincter and fecal leakage in a November 2003 VA examination. The Board finds that the opinion is probative. The weight shows that fecal incontinence was not incurred in service and the claim is denied. 5. Entitlement to service connection for bladder incontinence VA examinations show that the Veteran has bladder incontinence, first identified in December 2011. The Board finds that the preponderance of the evidence weighs against finding that the currently diagnosed bladder incontinence was incurred in service. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The Veteran did not have an injury, disease, or symptoms in service which can be related to his claimed bladder incontinence. He denied having bowl or bladder dysfunction in multiple VA treatment reports dated from 2007 to January 2011 showed no bladder incontinence despite observation for proper bowel and bladder elimination after a 2009 colonoscopy. Loss of bladder control was first reported in December 2011, and in May 2012, the Veteran reported an onset of bladder incontinence six months prior, which is consistent with the 2011 onset of the condition. Later treatment records dated from November 2012 through 2013 show that the Veteran denied having continuing bladder and bowel dysfunction. The evidence of record shows that bladder incontinence had an onset decades after service in 2011, and the evidence of record does not tend to establish a nexus between bladder incontinence and service. For these reasons, the Board finds that service connection for bladder incontinence is not warranted. 6. Entitlement to service connection for an acquired psychiatric disorder The Veteran was seen for persistent mental health problems in service. A January 1974 enlistment examination shows that the Veteran was sound at service entrance with regard to his psychiatric evaluation. Service treatment records show that the Veteran was referred to a mental hygiene evaluation in November 1974. The evaluation noted that he had been seen at the mental health clinic on four prior occasions in April, May, and October 1974 for maladaption to military life. The Veteran had a history of writing bad checks, which became apparent to his unit commander. Additionally, his wife left him, and began legal proceedings for the dissolution of their marriage. He reported difficulty eating and sleeping since his separation and appeared nervous and apprehensive during the interview. It was felt that the Veteran would not be able to perform his military duties efficiently in his current condition. He was assessed with acute situational maladaption in an immature personality. The Veteran was separated due to unsuitability based on his character and behavior disorders. The discharge proceedings noted his history of passing several bad checks and a demonstrated inability to handle stress of personal problems. The Veteran has a current diagnosis of anxiety disorder, not otherwise specified, for which he receives treatment and medication management. He has been diagnosed with an antisocial personality disorder. See VA treatment records, a July 2013 VA psychiatric evaluation, SSA psychiatric evaluation, and a February 2016 private psychiatric assessment. The Board notes that personality disorders, such as the diagnosed antisocial personality disorder, are considered congenital or developmental defects and, therefore, generally are not diseases or injuries for the purposes of service connection. 38 C.F.R. §§ 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). There is conflicting medical evidence of record with respect to whether the Veteran’s anxiety disorder was incurred in service. A July 2013 VA psychiatric examination included an interview of the Veteran, a review and discussion of the evidence of record, to include findings in service, and objective psychological testing using the MMPI-2. Although the Veteran’s testing scores indicated purposeful exaggeration of symptoms, he was nonetheless diagnosed with antisocial personality disorder and anxiety disorder, not otherwise specified. The VA examiner opined that antisocial personality disorder was in no way a result of military service. He opined that anxiety disorder was situational and tied to current life circumstances, and was not a result of his military service. A February 2016 private psychiatric assessment completed by Dr. H.H. included an interview of the Veteran and a review and discussion of the lay and medical evidence, and included a discussion of how the Veteran’s personality disorder related to his anxiety disorder, and a discussion of findings in service. Dr. H.H. opined that unspecified anxiety disorder more likely than not began during military service. Moreover, he opined that the Veteran’s back condition aggravated his anxiety disorder. The Board finds that both the VA and private psychiatric examinations provide probative evidence, and although the Veteran is shown by the July 2013 VA examination to have endorsed symptoms exaggeration, he nonetheless had anxiety disorder diagnosed and treated at VA and symptoms of anxiety were present in service. The Board finds that the evidence is at least in equipoise as to whether the currently diagnosed anxiety disorder had its onset in service. Resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for anxiety disorder, is warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran has not yet been rated for service connection for an acquired psychiatric disorder. Because his assigned rating could impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims for a TDIU is required The matter is REMANDED for the following action: (Continued on the next page)   After rating a rating has been assigned for service-connected anxiety disorder, and after any indicated development has been completed, readjudicate the issue of entitlement to a TDIU. If the benefits sought are not granted, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. James L. March Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine C. Kung