Citation Nr: 20003815 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 96-02 955 DATE: January 15, 2020 REMANDED Entitlement to an increased rating for fracture L1 with limitation of motion of the lumbar spine, rated 10 percent disabling prior to November 17, 1994, and 20 percent disabling thereafter is remanded. Entitlement to service connection for a bladder disorder, to include neurogenic bladder and/or bowel, associated with and/or secondary to service-connected lumbar spine disability is remanded. Entitlement to an initial higher rating for right lower extremity radiculopathy, rated as 10 percent disabling, effective October 1, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that continued a 10 percent rating for a low back disability with demonstrable deformity of a vertebral body. A July 1995 RO rating action granted a 20 percent rating effective November 17, 1994; however, the Veteran has continued her appeal for a higher rating or ratings. In August 2004, the Veteran testified at a Board hearing at the local RO before the undersigned Veterans Law Judge. In October 2010, the Veteran again testified before another Veterans Law Judge who is no longer employed at the Board. In January 2016, the Veteran was given the opportunity to request an additional hearing before another Veterans Law Judge; however, she did not request a new hearing within 30 days of the notice. These matters were previously remanded in February 2004, November 2004, March 2011 and July 2016 for further development. The issue of entitlement to a total disability rating due to individual unemployability (TDIU) was also previously remanded by the Board. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in various sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA became effective on February 19, 2019. Importantly, the AMA may apply to claims where the claimant has elected review of a legacy claim under the modernized review system. 38 C.F.R. §§ 3.2400, 19.2. As in the instant case, a claimant with a legacy claim may elect to opt-in to the AMA modernized review system following issuance, on or after the effective date of the AMA, of a VA Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). 38 C.F.R. §§ 3.2400, 3.2500, 19.2. Here, the Agency of Original Jurisdiction (AOJ) issued an SSOC in October 2019. In November 2019, the Veteran submitted a supplemental claim for the issue of entitlement to TDIU, thereby, electing to opt-in to the AMA system with respect to this issue. As such, this issue is not currently before the Board. However, with respect to the remaining issues on appeal, the Veteran did not elect to participate in the modernized review system pursuant to 38 C.F.R. §§ 3.2400 and 19.2. If a claimant with a legacy claim does not elect to participate in the AMA modernized review system by one of the methods described above, his or her claim remains in the legacy system. Thus, the Board will proceed with a decision on these issues. In an October 2019 rating decision, the AOJ granted service connection for right lower extremity radiculopathy associated with the low back disability and awarded a 10 percent rating, effective October 1, 2019. As radiculopathy of the right lower extremity is a neurological symptom of the Veteran's low back disability, this issue is considered part and parcel of the issue on appeal. In turn, the Board believes that this issue should also be viewed as being in appellate status. Further, in a December 2018 rating decision, the AOJ granted service connection for major depression and assigned a 50 percent disability rating, effective August 27, 2003, under the legacy system. In December 2019, the Veteran submitted a notice of disagreement (NOD) with respect to the disability rating and effective date assigned. The AOJ has not issued a statement to the case with respect to this matter. However, the electronic Veterans Appeals Control and Locator System (VACOLS) also noted receipt of the NOD as to this claim. As VACOLS indicates additional action is pending at the AOJ, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action is pending, Manlincon is not applicable at this time. Entitlement to an increased rating for fracture L1 with limitation of motion of the lumbar spine, rated 10 percent disabling prior to November 17, 1994, and 20 percent disabling thereafter is remanded. While the record contains a contemporaneous October 2019 VA examination regarding the Veteran’s low back disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). At the examination, the Veteran reported that she experienced flare-ups with increased pain, stiffness and decreased range of motion with prolonged sitting, standing or walking. The Veteran indicated that she can not do anyting at all when the pain is really bad. The examiner failed to opine as to the degree of functional impairment in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner simply stated that after considering the medical evidence of record, she had no basis to offer an opinion on additional losses of function or motion with repeated use over time. Likewise, the examiner indicated that she had no basis to offer additional losses of function or motion during a flare-up. The examiner did not indicate whether the inability to give an opinion was due to lack of knowledge within the medical community, a deficiency in the record, or the examiner does not have the knowledge or training. As such, this examination is inadequate, and a remand is required to afford the Veteran a new examination. In light of the need to remand, additional VA clinical records dated from October 2019 to the present should be obtained. Entitlement to an initial higher rating for right lower extremity radiculopathy, rated as 10 percent disabling, effective October 1, 2019, is remanded. As the Veteran’s radiculopathy is a neurological abnormality associated with her back disorder, the issue of entitlement to an initial higher rating for right lower extremity radiculopathy is inextricably intertwined with the Veteran’s claim for an increased rating for the service-connected back disorder. See Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, the VA examination must also address the severity of the Veteran’s radiculopathy. Entitlement to service connection for a bladder disorder, to include neurogenic bladder and/or bowel, associated with and/or secondary to service-connected lumbar spine disability is remanded. The issue of entitlement to service connection for a bladder disorder, to include neurogenic bladder and/or bowel, associated with and/or secondary to service-connected lumbar spine disability is also inextricably intertwined with the claim for an increased rating for the service-connected lumbar spine disability. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The General Rating Formula for Diseases and Injuries of the Spine provides that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, will be evaluated separately, under an appropriate diagnostic code. At the October 2019 VA examination, the examiner diagnosed bladder incontinence. The examiner opined that the disorder was not proximately due to or the result of the Veteran’s service-connected condition. The examiner rationalized that the two conditions were not medically related. The claimed disorder is a separate entity entirely from the service-connected condition and unrelated to it. The medical literature does not support a medical relationship. After reviewing the Veteran's claims file, she has been diagnosed with a condition of mixed incontinence. Neurogenic bladder by definition is a bladder condition that occurs when neurological conditions affect the bladder. Whereas, mixed incontinence by definition is the combination of stress incontinence and urinary urgency. The following conditions can lead to incontinence in women; obesity, aging, menopause, sedentary lifestyle, pelvic organ prolapse, chronic cough, and childbirth. A nexus has not been established. However, the examiner did not clearly discuss the cause of the Veteran’s incontinence and whether the Veteran’s low back disorder could be a substantial factor in such cause, including obesity or sedentary lifestyle. See VAOPGCPREC 1-2017. Moreover, the examiner did not offer an opinion as to whether the Veteran’s low back disorder aggravated her bladder disorder. The examiner also diagnosed constipation, but did not indicate whether this was a neurological abnormality associated with the Veteran’s low back disorder; or a separate disability that was proximately due to or aggravated by her low back disorder. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2019 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disorder and associated neurological abnormalities, including lower extremity radiculopathy. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose, if possible. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must also determine any neurological manifestations and symptoms related to the low back disability, to specifically include whether the Veteran’s right lower extremity radiculopathy should be characterized as moderate incomplete paralysis or worse. The examiner must also determine whether the Veteran has any neurological manifestations and symptoms of the bladder and/or bowel related to the low back disability. With respect to the diagnosed bladder incontinence and constipation, the examiner should opine whether the Veteran's bladder incontinence and constipation are at least as likely as not proximately due to service-connected low back disorder; or aggravated by service-connected low back disorder. In proffering this opinion, the examiner must determine whether the Veteran’s low back disorder causes any incremental increase, even transient, in her bladder incontinence and constipation regardless of permanence. See Ward v. Wilkie, No. 16-2157, 17-1204 (Vet. App. June 14, 2019). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.