Citation Nr: 21069413 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 18-19 364 DATE: November 18, 2021 ORDER Entitlement to a rating higher than 40 percent for neurogenic bladder with stress and urge incontinence for the period prior to October 22, 2020 is denied. Entitlement to a rating higher than 60 percent for neurogenic bladder with stress and urge incontinence for the period beginning October 22, 2020 is denied. REMANDED Entitlement to a rating higher than 10 percent for degenerative arthritis of the cervical spine for the period prior to December 7, 2016 is remanded. Entitlement to a rating higher than 30 percent for degenerative arthritis of the cervical spine for the period beginning December 7, 2016 is remanded. Entitlement to a higher rating for cervical radiculopathy of the right upper extremity currently evaluated 40 percent disabling beginning May 2, 2018 is remanded. Entitlement to an initial rating higher than 30 percent for cervical radiculopathy of the left upper extremity, effective May 2, 2018, is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. For the period prior to October 22, 2020, neurogenic bladder with stress and urge incontinence was manifested by voiding intervals of less than an hour; requirement of an appliance or wearing of absorbent material that must be changed more than four times per day is not shown. 2. For the period beginning October 22, 2020, neurogenic bladder with stress and urge incontinence was manifested by wearing absorbent material which must be changed more than four times per day. CONCLUSIONS OF LAW 1. For the period prior to October 22, 2020, the criteria for a rating higher than 40 percent for neurogenic bladder with stress and urge incontinence have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115a-b, Diagnostic Code 7542. 2. For the period beginning October 22, 2020, the criteria for a rating higher than 60 percent for neurogenic bladder with stress and urge incontinence have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115a-b, Diagnostic Code 7542. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1990 to December 1999 and again from March 2003 to May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). As the appeal includes a claim for a higher rating for the cervical spine disability, the Board will take jurisdiction of the Veteran's claims for higher ratings for his bilateral upper extremity radiculopathy and bladder dysfunction, which is part and parcel of rating the orthopedic and neurologic manifestations of cervical spine disability under the General Rating Formula for Diseases and Injuries of the Spine as well as considering an alternative rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5253-5243. See also Chavis v. McDonough, 34 Vet. App. 1 (2021) (holding Board properly had jurisdiction evaluating the neurologic manifestations of lumbar spine IVDS). The Board also notes that in May 2020, the Veteran submitted a request electing the modernized review system (higher level review) for the issues of increased ratings for cervical radiculopathy of the bilateral upper extremities and entitlement to TDIU. However, the issues are ineligible for the process because he failed to withdraw his appeal from the legacy appeal process. See, e.g., Correspondence dated May 20, 2020. Therefore, the Board will continue with adjudication pursuant to current legacy appeals procedures. Notably, these issues were last adjudicated by the AOJ in 2020. Since that time, the Veteran, through his representative, submitted additional evidence in the form of examination reports, pertinent to the claims on appeal. As this evidence was submitted by the Veteran's representative, neither AOJ review in the first instance or waiver from the Veteran is required, and appellate adjudication of the appeal may proceed without prejudice to the Veteran. 38 U.S.C. § 7105(e). To that end, the Board acknowledges that the RO issued a rating decision in July 2018 related to the bladder disability and a statement of the case (SOC) pertaining to the Veteran's increased rating claims for his cervical radiculopathy of the bilateral upper extremity in March 2020. Subsequent to the March 2020 SOC, the RO received additional evidence related to his disabilities on appeal. The additional evidence received was then considered and readjudicated by the RO in a February 2021 rating decision. 38 C.F.R. § 19.31. While the readjudication of the claim was conducted in a rating decision rather than a Supplemental Statement of the Case (SSOC), the additional evidence has clearly been considered by the RO in the first instance. The Veteran is not prejudiced because he was notified of the RO's consideration of the evidence and readjudication of his claims in a rating decision rather than a SSOC. Accordingly, the Board finds that a waiver of RO consideration is not required for the evidence considered by the RO as of the February 2021 rating decision. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Bladder Incontinence The Veteran is seeking increased staged ratings for neurogenic bladder, which is rated pursuant to 38 C.F.R. § 4.115a, Diagnostic Code 7542. Diseases of the genitourinary system generally result in disabilities related to renal or voiding dysfunctions, infections, or a combination of these. 38 C.F.R. § 4.115a. Where the diagnostic code refers to a specific area of dysfunction, only the predominant area of dysfunction shall be considered for rating purposes. Diagnostic Code 7542 is rated as voiding dysfunction. 38 C.F.R. § 4.115b. Voiding dysfunction is rated as either urine leakage, frequency, or obstructed voiding. 38 C.F.R. § 4.115a. When there is continual urine leakage, post-surgical urinary diversion, urinary incontinence, or stress incontinence, a 60 percent rating is warranted for voiding dysfunction requiring the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. A 40 percent rating is warranted for voiding dysfunction requiring the wearing of absorbent materials which must be changed 2 to 4 times per day. For a rating based on urinary frequency, a 40 percent rating is warranted for daytime voiding interval less than one hour, or awakening to void five or more times per night. Daytime urinary frequency intervals between one and two hours or nocturia three or four times a night warrants a 20 percent rating. A 10 percent evaluation is warranted for daytime voiding interval between two and three hours, or awakening to void two times per night. Id. Turning to the facts of the case, at the May 2018 VA examination, the examiner noted that the Veteran had a voiding dysfunction which caused urine leakage. The Veteran reported that he emptied his bladder a couple times per hour rather than wearing absorbent material during the day. At night, the Veteran wet the bed, for which the Veteran used a protective mattress cover on the bed. There was no evidence that voiding dysfunction required the use of an application or caused signs or symptoms of obstructive voiding. However, there was increased urinary frequency as daytime voiding interval was less than one hour and nighttime awakening to void was three to four hours. There were no additional signs or symptoms related to the Veteran's bladder disability. A November 2018 private medical report included the Veteran's denial of urinary incontinence. Based on this examination, the RO granted service connection for neurogenetic bladder and assigned a 40 percent disability rating. See July 2018 Rating Decision. At a hearing in November 2020, the Veteran reported the onset of bladder problems after his neck surgery in 2014. He did not initially bring up the issue with his treating physicians out of embarrassments, but described having had accidents at home and work and needing to be near a bathroom. Most recently, at the November 2020 VA examination, the Veteran reported persistent hourly frequency of urination with urge and stress incontinence. He used incontinence pads, which must be changed more than four times per day. He stated that daytime voiding frequency was between one and two hours and nighttime awakening to void three to four times per night. However, there was no signs or symptoms of obstructed voiding, urethral or bladder calculi, or infections. Based on this evidence, the RO granted a maximum 60 percent rating, effective October 22, 2020. Based on the above, the Board finds that a rating higher than 40 percent is not warranted for neurogenic bladder with stress and urge incontinence for the period prior to October 22, 2020. During this period, the Veteran's symptom of voiding intervals of less than an hour is consistent with a 40 percent evaluation for urinary frequency. There is no medical or lay evidence showing the required use of an appliance or absorbent materials that must be changed more than four times per day. Those are the only manifestations of a voiding dysfunction that would warrant an evaluation in excess of 40 percent. Notably, additional VA and private treatment records are not inconsistent with the findings of the May 2018 VA examination with respect to the severity of voiding dysfunction. Thus, a rating higher than 40 percent is not warranted for the period prior to October 22, 2020. For the period beginning October 22, 2020, the Veteran's neurogenic bladder with stress and urge incontinence have been manifested by the wearing of absorbent materials which must be changed more than four times per day. The assigned 60 percent rating adequately contemplates the Veteran's symptoms during this period and is the maximum schedular disability rating under Diagnostic Code 7542 based on voiding dysfunction. The Board cannot factually ascertain from the lay and medical evidence any specific time period that the increased severity of symptoms occurred. Therefore, a rating in excess of 60 percent for the period from October 22, 2021 is not available. 38 C.F.R. § 4.115a. REASONS FOR REMAND Remaining Increased Rating Claims The Veteran is seeking increased staged ratings for his cervical spine and cervical radiculopathy of the bilateral upper extremities. The appeal period is potentially from August 19, 2014, one year prior to VA's receipt of the claim for increase. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). As noted above, the Board will consider whether earlier effective dates for the compensation for the neurologic complications of IVDS may be assigned. See Chavis, 34 Vet. App. 1 (2021). The record reflects that in September 2014, during the appeal period, the Veteran underwent a cervical fusion related to his service-connected disabilities. Notably, records related to this surgery are not in the claims file. According to 38 C.F.R. § 4.30, a temporary total rating (100 percent) for convalescence will be assigned from the date of hospital admission and continue for 1, 2, or 3 months from the first day of the month following hospital discharge when treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a). In order to properly evaluate the severity of the Veteran's cervical spine disability and associated radiculopathy, the RO must obtain all records related to the Veteran's September 2014 cervical fusion. Therefore, a remand is required for the AOJ to obtain any outstanding relevant records and readjudicate the merits of the increased rating claims, to include the propriety of a temporary total disability rating. In regard to the Veteran's claim for TDIU, the Board finds this issue is inextricably intertwined with the remanded issues. Thus, the Board will defer adjudication on the issue of entitlement to TDIU and remand it with the other issues being remanded. The matters are REMANDED for the following action: 1. Contact the Veteran and with his help, identify any and all outstanding records related to the Veteran's September 2014 cervical fusion and subsequent convalesce period. Attempts to obtain this information should be documented in the record. 2. After completing any additional development deemed necessary, readjudicate the Veteran's claims for increased staged ratings related for his cervical spine disability and cervical radiculopathy of the bilateral upper extremities, to include the propriety of the assignment of a temporary total rating related to the September 2014 cervical fusion. 3. If the benefits requested on appeal are not granted to the Veteran's satisfaction, the Veteran should be furnished a Supplemental Statement of the Case (SSOC) and be afforded an opportunity to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.