Citation Nr: 21063703 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-36 153 DATE: October 15, 2021 ORDER Entitlement to service connection for urinary incontinence is denied. Entitlement to service connection for fecal incontinence is denied. Entitlement to a disability rating of 40 percent, but not higher, for degenerative disc disease of the lumbar spine (lumbar spine condition) from May 7, 2010, is granted. Entitlement to a disability rating in excess of 40 percent for the Veteran's lumbar spine condition from April 4, 2012, is denied. REMANDED Entitlement to service connection for radiculopathy of the left lower extremity is remanded. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's urinary incontinence is not associated with his service-connected lumbar spine condition. 2. The Veteran's fecal incontinence is not associated with his service-connected lumbar spine condition. 3. From May 7, 2010, the Veteran's lumbar spine condition is best approximated by limitation of forward flexion to 30 degrees or less. 4. From April 4, 2012, the Veteran's lumbar spine condition has not manifested as unfavorable ankylosis, nor as incapacitating episodes having a total duration of at least six weeks during the past twelve months. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran's urinary incontinence have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 2. The criteria for service connection for the Veteran's fecal incontinence have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 3. From May 7, 2010, the criteria for entitlement to a disability rating of 40 percent, but not higher, for the Veteran's lumbar spine condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 4. From April 4, 2012, the criteria for entitlement to a disability rating in excess of 40 percent for the Veteran's lumbar spine condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to February 1985, with subsequent periods of active and inactive duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of January, July, and November 2015 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board previously remanded these issues for further development. See June 2020 Board Decision at 5-10. After reviewing the evidence of record, the Board now finds that the RO has partially addressed its prior remand directives and will therefore proceed to adjudicate several of the Veteran's claims on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). As will be discussed further below, an additional remand is warranted to adequately address the remaining claims on appeal. Service Connection Service connection generally requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for urinary and fecal incontinence. The Veteran asserts that he experiences urinary and fecal incontinence as a result of his service-connected spine condition. See August 2015 VA Form 21-4138; see also February 2021 Correspondence (I) at 1; see also 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine, Note (1) (providing that "neurologic abnormalities, including... bowel or bladder impairment" associated with service-connected spine conditions are to be separately rated). After finding that a prior VA examination of November 2015 did not adequately explain its reasoning, the Board remanded these claims for a subsequent examination. See June 2020 Board Decision at 6-7. The November 2020 VA examiner considered the Veteran's lay assertions, but ultimately opined that neurological testing supported the conclusion that these conditions were not associated with his service-connected lumbar spine condition: [The Veteran states his condition] of urinary incontinence began in 2015 [and that] the incontinence began with flare-ups of back pain... [He] can smell the odor of urine in the pad. He stated that it is not a severe problem. He describes it as a mild leakage. No current treatment... He has mild urinary leakage which may be attributed to a prostate problem. This can happen in older males... For [the Veteran's] claimed condition of urinary incontinence there is no diagnosis because there are no findings, signs[,] and/or symptoms to support a diagnosis. He does not have incontinence. He has dribbling which may be related to a prostate problem. In prior exams there was no evidence of a neurological problem that would cause urinary incontinence. Although [he] complains of subjective symptoms, there are no objective findings, medical evaluations, or diagnostic evidence to support a diagnosis. See November 2020 VA Examination Report (I) at 2; see also id. at 6. [The Veteran asserts that fecal] incontinence began in 2015... [When his] back is strained he has had fecal incontinence. He was not treated for this condition, since he never reported the condition... He continues to have fecal incontinence and wears a pad. No current treatment for this condition because he never sought medical evaluation... For [the Veteran's] claimed condition of fecal incontinence there is no diagnosis because there are no findings, signs[,] and/or symptoms to support a diagnosis. He reports occasional fecal incontinence approximately 3 times/week without a major flare-up of back pain. He does have antiinflammatory medication and a muscle relaxer to control his back pain and indirectly his self-reported episodes of fecal incontinence. See November 2020 VA Examination Report (II) at 2; see also id. at 5. In June 2015 [the Veteran] reported issues with bowel/urine incontinence secondary to his lumbar spine [condition]. In November 2015 the exam showed [that] the Veteran has normal sensation in a saddle distribution and all sacral roots bilaterally. The significance of this finding is extremely important since this nerve enervates the buttocks, perineum and inner thighs. It is this nerve that controls continence of the bowel and bladder. Today, during the sensory examination of [the Veteran's] lower extremities, he had normal sensation of both inner thighs, starting at the inner groin area. See November 2020 VA Medical Opinion (III) at 2 (emphasis added) (capitalization omitted); see also November 2020 VA Medical Opinion (II) at 2 (noting that during prior November 2015 VA examination, "a rectal examination was performed to evaluate [the Veteran's] prostate[,]" that he "has an enlarged prostate[,]" and that "the reported voiding dysfunction is of unknown etiology and most likely due [to or] related to [benign prostatic hypertrophy]"); see also November 2020 VA Medical Opinion (IV) at 2 (noting that November 2015 VA examination "showed normal saddle nerve enervation with a slight decrease in sphincter tone" and that "[no] feces were noted on pad in [the Veteran's underwear] by examiner"); see also November 2020 VA Medical Opinion (VI) at 2 (capitalization omitted) (again noting normal saddle nerve findings and that "there is no evidence of feces in his pad/underwear today"). The Veteran's counsel now asserts that the November 2020 VA examinations were inadequate because they did not consider the Veteran's lay assertions regarding the onset and frequency of his symptoms. See February 2021 Appellate Argument at 11-12. As discussed above, this assertion is flatly contradicted by the November 2020 VA examination reports and medical opinions, which make repeated references to the Veteran's statements. The Veteran's counsel further asserts that: Importantly, [the Veteran] reports that he experiences incontinence particularly when he is having a flare-up [of his service-connected lumbar spine condition]. Therefore, it would be reasonable to infer that, assuming [the Veteran's] incontinence is caused by nerve impingement, the symptoms would only be elicited with certain movements that impinge the nerve, with otherwise normal conduction of the nerve(s). Thus, [he] could have normal sensation in the saddle distribution and in all the sacral roots bilaterally during the [VA] examination, and then impinge the nerve(s) the next day when he moves the wrong way. Id. at 12. The Board notes that the Veteran has also submitted additional medical evidence in support of these claims. See February 2021 Medical Correspondence. In pertinent part, these articles suggest that pudendal nerve entrapment syndrome may be caused by "[direct] trauma to the buttocks or back[,]" may cause "fecal incontinence [and] urinary hesitancy" among other symptoms, but presents with "relatively normal" physical examinations. See id. at 3-4; see also February 2021 Appellate Argument at 12-13 (asserting in the alternative that the Veteran's asserted urinary and fecal incontinence is due to muscular dysfunction); see also February 2021 Medical Correspondence at 1-2 (discussing muscular dysfunction of the pelvic floor). However, the Veteran has not submitted any competent or credible lay or medical evidence supporting the inference that the general medical information provided in these articles is applicable to his specific case. As discussed above in the VA examiners' findings, the competent evidence of record supports the inference that the Veteran's urinary and fecal incontinence are not neurological abnormalities associated with his service-connected lumbar spine condition. It is therefore not "reasonable" to "[assume the Veteran's] incontinence is caused by nerve impingement," nor to speculate as to the frequency of nerve impingement symptoms or alternative muscular etiologies, absent support from qualified medical experts. See February 2021 Appellate Argument at 12-13, supra; cf. Colvin v. Derwinski, 1 Vet. App. 171 (1991). In the absence of competent medical evidence which is particular to the Veteran's case and adequate to rebut the findings of the November 2020 VA examiner, the Board must conclude that the third Shedden factor has not been met. The assignment of service connection for the Veteran's asserted conditions of urinary and fecal incontinence is therefore not warranted. 38 C.F.R. § 3.303. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claims. 38 U.S.C. § 5107. Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). When the appeal is from the initial rating assigned with the grant for service connection, "staged" ratings (for periods when varying degrees of disability are shown) may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable Diagnostic Code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). In determining if a higher rating is warranted on this basis, pain alone does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance as provided in 38 C.F.R. §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 2. Entitlement to an increased disability rating for the Veteran's lumbar spine condition. The Veteran's lumbar spine condition is rated as 10 percent disabling from May 7, 2010, and as 40 percent disabling from April 4, 2012, under Diagnostic Code (DC) 5243. See June 2017 Rating Codesheet. The Board previously remanded this issue for an updated VA examination and additional medical records. See June 2020 Board Decision at 5-6; see also id. at 8-9; see also June 2020 Development Letter. The applicable rating criteria provide in pertinent part that ratings may be assigned "either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation[.]" See 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is assigned for this condition where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees, where the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or where there is vertebral body fracture with loss of 50 percent or more of height. Id., General Rating Formula. A disability rating of 20 percent is assigned where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or where 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. Id. A disability rating of 40 percent is assigned where forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. Id. Finally, a disability rating of 50 percent is assigned under the General Rating Formula where there is unfavorable ankylosis of the entire thoracolumbar spine. Id. In this context, unfavorable ankylosis is defined as: [A] condition in which the entire... thoracolumbar spine... is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of the 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id., Note (5). The provisions of the General Rating Formula apply "[with] or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease." Id., General Rating Formula. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), a disability rating of 10 percent is assigned where there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. See 38 C.F.R. § 4.71a, IVDS Formula. A disability rating of 20 percent is assigned where such episodes have a total duration between two and four weeks during the past 12 months. Id. A disability rating of 40 percent is assigned where such episodes have a total duration between four and six weeks during the past 12 months. Id. Finally, a disability rating of 60 percent is assigned where such episodes have a total duration of at least six weeks during the past 12 months. Id. In this context, an incapacitating episode is defined as "a period of acute signs and symptoms due to [IVDS] that that requires bed rest prescribed by a physician and treatment by a physician." Id., Note (1). The Veteran has undergone VA examinations addressing this issue in November 2010, July 2015, and November 2020. After reviewing the evidence of record, including these VA examinations, the Veteran's medical treatment records, and his lay statements, the Board finds that it is at least as likely as not that his lumbar spine condition is best approximated by the 40 percent rating criteria discussed above throughout the rating period on appeal. In reaching this conclusion, the Board begins with the VA examinations of record. The November 2010 VA examiner found forward lumbar flexion to 65 degrees. See November 2010 VA Examination Report at 16; see also id. (noting an absence of muscle spasm, localized tenderness, or guarding severe enough to be responsible for abnormal gait or abnormal spinal contour); see also id. at 15 (noting no incapacitating episodes of spine disease); cf. id. (noting use of cane and wheelchair as assistive devices and noting Veteran's assertion of "sharp, 'screaming'" pain); see also id. at 13-14 (noting Veteran's assertions of flare-ups "[every] 2 to 4 months" lasting "1 to 2 weeks[,]" during which "[he] cannot do any activity" and "[must] be on complete bed rest"). The July 2015 VA examiner found forward lumbar flexion to 60 degrees. See July 2015 VA Examination Report at 2; see also id. at 6 (finding no ankylosis); see also id. at 7 (finding no IVDS); see also id. (noting regular use of a cane and Veteran's assertion that "I have a [wheel]chair that I use on bad days"); see also id. at 8 (noting Veteran's assertions of "no prolonged sitting or standing[,] [no] heavy lifting [or] prolonged bending over" and that "I can do most things but I will pay for it for sure"). The November 2020 VA examiner found forward lumbar flexion to 35 degrees. See November 2020 VA Examination Report (III) at 3; see also id. at 4 (estimating that flare-ups or repeated use over time would further limit flexion to 30 degrees); see also Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) (providing that VA examiners are expected to provide estimates evaluating the additional degree of functional impairment experienced during flare-ups of a condition, and that direct observation of a condition during such a flare-up is not required); see also id. at 7 (finding no IVDS); see also id. at 8 (noting regular use of a cane "to stabilize his balance and to assist him [in rising] out of a chair [or] to get in/out [of] the car"). Additionally, the Board notes a private examination of April 2012 which found forward flexion limited to 20 degrees. See August 2014 Medical Treatment Records at 4; see also id. (noting that the Veteran "[walks] with a cane" and "uses a wheelchair on an as-needed basis when his pain is severe or to prevent prolonged walking"); see also id. at 5 (diagnosing "[large] extruded L5-S1 disc herniation with severe degenerative changes"). The Veteran's medical treatment records otherwise reflect ongoing symptoms of back pain. See October 2014 Medical Treatment Records (II) at 1 (providing treatment note of November 2008 observing that "back pain is worsening," but that the Veteran "[uses] a stationary bike for exercise" and can perform activities of daily living with varying degrees of difficulty); see also March 2015 Medical Treatment Records at 3 (providing assertion that "[usually] when he is walking it is in a grocery store and he requires a cart to lean on"); see also September 2015 Medical Treatment Records at 1 (providing August 2015 treatment note observing that "range of motion is severely restricted" and that "[the Veteran] says he can do [activities], but he usually pays for any type of activity such as this"). The Veteran's additional assertions likewise reflect ongoing symptoms of back pain which result in significant functional impairment. See February 2021 VA Form 21-4138 at 2-3 (asserting that "[when] I get up in the morning, my back is very stiff, and I walk around like a 92-year-old man for a few hours until my back loosens up" and that "I recently had to put air in my tire, and just the process of pulling out the hose and filling up the tire put me in so much pain that I had [to] lay down in bed and did not end up driving the car that day"). As noted above, the provisions of the General Rating Formula apply "[with] or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease." 38 C.F.R. § 4.71a, General Rating Formula. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell, 25 Vet. App. at 37. While the degree of limitation of motion found by the medical examiners discussed above has varied over time, the Veteran's assertions regarding the extent of his functional impairment during flare-ups have remained more consistent. See November 2010 VA Examination Report at 13-14; see also July 2015 VA Examination Report at 7-8. These assertions are also more consistent with the more-severe findings of the April 2012 private examination and November 2020 VA examination discussed above. Based on these consistencies, and because the November 2010 VA examination does not include estimates of functional impairment during flare-ups as the November 2020 VA examination does, the Board finds it at least as likely as not that the severity of the Veteran's lumbar spine condition is best approximated as limitation of forward flexion to 30 degrees or less throughout the rating period on appeal. 38 U.S.C. § 5107. The assignment of a 40 percent disability rating from May 7, 2010 is therefore warranted. 38 C.F.R. § 4.71a, General Rating Formula. A rating in excess of 40 percent under the General Rating Formula is not assigned without unfavorable ankylosis of the thoracolumbar spine. Id. The Board is mindful that an evaluation based on favorable or unfavorable ankylosis may be assigned "if a claimant's functional loss is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis." See Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 at 20. However, the regulations describe unfavorable ankylosis as not merely fixation of the spine, the functional equivalent of which may be temporarily induced due to symptoms of pain, but fixation in a position which results in impairment of other bodily functions such as vision, chewing and swallowing, or breathing because of the misaligned position of the spine. See Chavis, supra; cf. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). Neither the Veteran's medical treatment records nor his lay assertions support the inference that he experiences this kind of additional symptomatology, even during flare-ups. A rating in excess of 40 percent under the IVDS Formula requires incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, IVDS Formula. As noted above, evaluating incapacitating episodes for this purpose requires "bed rest prescribed by a physician and treatment by a physician." Id., Note (1). None of the medical evidence of record supports the inference that the Veteran has been prescribed bed rest by a physician for this duration during the rating period on appeal. See November 2010 VA Examination Report at 15 (noting no incapacitating episodes of spine disease); see also July 2015 VA Examination Report at 7 (finding no IVDS); see also November 2020 VA Examination Report at 7 (same). A disability rating in excess of 40 percent under either the General Rating Formula or the IVDS Formula is therefore not warranted. 38 C.F.R. § 4.71a. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to service connection for bilateral radiculopathies of the lower extremities as secondary to the Veteran's lumbar spine condition. The Veteran asserts that he experiences bilateral radiculopathies of the lower extremities as a result of his service-connected lumbar spine condition. See March 2015 Notice of Disagreement (NOD); see also February 2021 Correspondence at 7-9. The Board previously requested that a VA examiner address this theory of service connection in its June 2020 remand. See June 2020 Board Decision at 9; see also November 2020 VA Medical Opinion (I) at 2 (opining that right lower extremity neurological symptoms are more likely attributable to non-service-connected diabetes mellitus); see also November 2020 VA Medical Opinion (V) at 2 (opining same as to left lower extremity). However, the RO does not appear to have addressed these issues in a supplemental statement of the case (SSOC) as directed. See January 2021 SSOC at 5 (addressing other issues on appeal); cf. June 2020 Board Decision at 10 (providing that "if any benefit sought on appeal is not granted... a [SSOC] should be issued"). Remand for the issuance of such a SSOC is therefore warranted. See 38 C.F.R. § 19.31(c). 2. Entitlement to a TDIU. Because the Veteran's claims for service connection for bilateral radiculopathies are being remanded, and because the outcome of those claims is relevant to the Veteran's potential entitlement to a TDIU, the Board finds that the issue of entitlement to a TDIU is inextricably intertwined with those claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). These matters are therefore REMANDED for the following action: Issue a supplemental statement of the case addressing the issues of service connection for bilateral radiculopathies of the lower extremities. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, 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.