Citation Nr: 21070054 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 02-19 159 DATE: November 22, 2021 ORDER A separate rating for urinary incontinence is denied. FINDING OF FACT The weight of the evidence is against finding the Veteran's urinary incontinence is associated with his service-connected residuals of fracture of the lumbar spine with multilevel degenerative disc disease. CONCLUSION OF LAW The criteria for a separate rating for urinary incontinence have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.303, 3.310, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5285. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from September 1974 to September 1976. 1. A separate rating for urinary incontinence The Veteran's claim for a separate rating for urinary incontinence stems from an appeal for a higher rating for his back disability. The Veteran was assigned the 70 percent rating for his back under Diagnostic Code 5285, which did not include a directive to assign separate ratings for neurologic abnormalities associated with the spine. 38 C.F.R. § 4.71a, DC 5285 (2001). Subsequently in 2003, the regulation was updated to include the General Rating Formula for Diseases and Injuries of the Spine, which includes the provision for assignment of separate ratings for associated neurologic abnormalities. 38 C.F.R. § 4.71a, General Rating Formula for the Spine, Note (1). Generally, claims pending prior to the effective date of a change in regulation will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. While the Courts have addressed when VA should consider old and new versions of an applicable regulation, at no time have the Courts suggested that a veteran can receive disability ratings under both versions simultaneously. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Accordingly, a separate rating for urinary incontinence as part of the rating for a spine disability is only available through the 2003 amendment and the General Rating Formula for the Spine. Under the General Rating Formula for the Spine, a maximum 40 percent rating is available unless there is a showing of ankylosis in the spine. In the December 2017 decision, the Board found the Veteran did not have ankylosis in the spine, and the Veteran did not appeal this determination to the U.S. Court of Appeals for Veterans Claims. Therefore, the Veteran could either receive the 70 percent rating under the old rating criteria and not be eligible for separate ratings for associated neurologic abnormalities or receive the 40 percent rating for limitation of motion of the thoracolumbar spine and separate ratings for associated neurologic abnormalities under the General Rating Formula for the Spine. The October 2018 Joint Motion for Partial Remand does not explain what legal basis there is for an award of 70 percent under Diagnostic Code 5285 (2002) and separate ratings for neurologic abnormalities associated with the spine. Nevertheless, the Board has reviewed the record and finds the weight of the evidence is against finding the Veteran's current urinary incontinence is associated with service-connected residual fracture of the lumbar spine with multilevel degenerative disc disease. There is conflicting evidence as to when the Veteran's urinary incontinence began. The Veteran suffered a cerebrovascular accident (CVA) in May 2000. The first notation in the record of incontinence is from March 2006 where a private evaluator noted complete loss of bladder sphincter control. The Veteran denied nocturia or increase in urinary frequency in August 2006 and August 2007 treatment and denied bladder incontinence during the July 2008 VA spine examination. Private evaluations in January 2010 and March 2012 show notations of no loss of bladder sphincter control. VA examinations for the spine in March 2011, January 2013, May 2013, July 2013, and March 2016 did not reveal urinary incontinence. The February 2012 VA examination for stroke revealed voiding dysfunction. Subsequent treatment records from 2014 to 2019 document reports of incontinence. During the claim period, the Veteran reported experiencing urinary dysfunction since the back injury in service. See November 2019, December 2018 treatment; November 2019 examination. However, previous records do not support that he had urinary incontinence prior to the 2000 CVA. In the late 1990s, the Veteran made statements to treating providers and VA adjudicators about the impacts of his back pain on his lower extremities and his sleep but did not mention urinary incontinence. For example, in May and July 1995, the Veteran reported back pain impacting his ability to work as a plumber but did not mention urinary frequency, leakage, or similar symptoms that could impact his ability to work in that vocation. During his appeal for an increased rating for the back disability in February and March 1997, he reported back pain and right leg symptoms but not urinary problems. A June 1998 VA examiner opined that the Veteran's back disability involved the spinal structure only and did not involve the muscles or nerves. The Board has considered the Veteran's reports of symptoms since service but finds the contemporaneous documented evidence is more probative that he did not experience urinary incontinence until many years after the back injury in service. Additionally, in an April 2021 opinion, a VA examiner concluded that the Veteran's urinary incontinence was less likely than not related to his military service. The examiner stated a thorough review of the medical records available in the claims file to date does not support an etiology or onset of the urinary incontinence incurred, caused by, or related to service, to include the Veteran's back injury in service. The medical exams prior to the CVA in 2000 do not reveal any c/o or treatment for urinary incontinence. There is no established medical nexus The next question is whether the Veteran's advancing back disability caused or aggravated his urinary incontinence in more recent years. The Board finds the weight of the evidence is against finding such a connection. As mentioned, the VA examiners in January 2013, May 2013, July 2013, March 2016, and November 2019 found no neurologic abnormalities associated with the Veteran's spine disability. During September 2019 treatment, the Veteran reported urine leakage mostly observed with severe back pain, and VA treating provider in November 2019 noted bladder incontinence may also be from the Veteran's history of back injury. Conversely, the treating provider in September 2019 noted that urinary incontinence would be most likely due to the CVA in 2000 rather than the back disability, because urinary incontinence due to uninhibited contractions after CVA is very common and MRI of the lumbar spine in 2015 did not show signs of lumbar stenosis and neural foramina were all patent except for mild attenuation of the right foramen at L4-L5. Similarly, the April 2021 examiner opined that the Veteran's urinary incontinence was not caused or aggravated by his back disability. The examiner explained that a review of the numerous x-rays and MRIs of the lumbar spine did not reveal any cauda equina syndrome, and therefore, there is no anatomic or pathophysiological basis for the Veteran's back disability to have caused or aggravated his urinary incontinence. The Veteran has not identified or provided competent medical evidence to establish that his urinary incontinence is caused or aggravated by his back disability, and he does not possess the requisite medical knowledge or training to provide evidence on the etiology of a complex disability of the nervous and genitourinary systems. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered the November 2019 notation but finds it conclusory and outweighed by the more-thorough, negative medical opinions of record. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The private records that discuss urinary incontinence are not limited to the back but also discuss the CVA. As such, the most probative evidence of record is against finding the Veteran's urinary incontinence is associated with his military service or his service-connected back disability. The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise, and the appeal for a separate rating for urinary incontinence must be denied. See 38 U.S.C. § 5107(a). D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.