Citation Nr: 21071986 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-35 196 DATE: December 2, 2021 ORDER A rating for a low back disability, characterized as intervertebral disc syndrome, in excess of 10 percent from March 25, 2015 to August 27, 2019, and in excess of 20 percent, thereafter, is denied. An initial rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve prior to October 14, 2015, and in excess of 80 percent, thereafter, is denied. An initial rating in excess of 20 percent for right lower extremity radiculopathy of the femoral nerve prior to August 27, 2019, and in excess of 40 percent, thereafter, is denied. Entitlement to service connection for urinary incontinence, to include as secondary to a low back disability, is granted. Entitlement to service connection for loss of bowel control, to include as secondary to a low back disability, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During the period from March 25, 2015 to August 27, 2019, the Veteran's low back disability, characterized as intervertebral disc syndrome, was manifested by pain and limitation of motion; forward flexion of the thoracolumbar spine less than 60 degrees, a combined range of motion of the thoracolumbar spine of 120 degrees or less, or muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, revered lordosis, or abnormal kyphosis, and/or intervertebral disc syndrome have not been shown. 2. During the period since August 27, 2019, the Veteran's low back disability, characterized as intervertebral disc syndrome, was manifested by pain, limitation of motion, and guarding severe enough to result in abnormal gait; forward flexion of the thoracolumbar spine less than 30 degrees, favorable ankylosis of the entire thoracolumbar spine, and/or intervertebral disc syndrome with for at least 6 weeks during the past 12 months, have not been shown. 3. During the period prior to October 14, 2015, the Veteran's right lower extremity radiculopathy of the sciatic nerve was manifested by moderate incomplete paralysis; moderately severe incomplete paralysis was not shown. 4. During the period prior to August 27, 2019, the Veteran's right lower extremity radiculopathy of the femoral nerve was manifested by moderate incomplete paralysis; severe incomplete paralysis was not shown. 5. Since October 14, 2015, the Veteran's right lower extremity radiculopathy of the sciatic nerve has been rated at the highest rating possible under DC 8520. 6. Since August 27, 2019, the Veteran's right lower extremity radiculopathy of the femoral nerve has been rated at the highest possible rating under DC 8526. 7. The Veteran's reported urinary incontinence is related to her low back disability. 8. The Veteran's reported loss of bowel control is related to her low back disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a low back disability, characterized as intervertebral disc syndrome, from March 25, 2015 to August 27, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 20 percent for a low back disability, characterized as intervertebral disc syndrome, from August 27, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 3. The criteria for an initial rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve prior to October 14, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 8520. 4. The criteria for a rating in excess of 80 percent for right lower extremity radiculopathy of the sciatic nerve since October 14, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 8520. 5. The criteria for an initial rating in excess of 20 percent for right lower extremity radiculopathy of the femoral nerve prior to August 27, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 8526. 6. The criteria for a rating in excess of 40 percent for right lower extremity radiculopathy of the femoral nerve since August 27, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 8526. 7. The criteria for service connection for urinary incontinence, to include as secondary to a low back disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 8. The criteria for service connection for loss of bowel control, to include as secondary to a low back disability, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1980 to June 1989. The Veteran previously requested a hearing before the Board of Veterans' Appeals (Board). She indicated in a statement submitted on September 17, 2021, that she wished to withdraw her hearing request. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In any increased rating claim, different ratings can be assigned for different periods of time in a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown,8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. A rating for a low back disability, characterized as intervertebral disc syndrome, in excess of 10 percent from March 25, 2015 to August 27, 2019, and in excess of 20 percent thereafter 2. An initial rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve prior to October 14, 2015, and in excess of 80 percent, thereafter 3. An initial rating in excess of 20 percent for right lower extremity radiculopathy of the femoral nerve prior to August 27, 2019, and in excess of 40 percent, thereafter The Veteran is seeking higher ratings for her low back disability, characterized as intervertebral disc syndrome, and for her right lower extremity sciatic and femoral radiculopathy disabilities. She asserts that the ratings assigned during the periods on appeal are insufficient in contemplating the severity of her disabilities during those times. During the period from March 25, 2015 to August 27, 2019, the Veteran's low back disability has been assigned a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5242 (addressing limitation of motion and IVDS of the lumbar spine). A rating in excess of 10 percent is warranted for a lumbar spine disability when the evidence shows: Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20 percent); A combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent); Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); Intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent). 3.38 C.F.R. § 4.71a. Since August 27, 2019, the Veteran's low back disability was assigned a 20 percent rating under 38 C.F.R. § 4.71a, DC 5243 (addressing limitation of motion and IVDS of the lumbar spine). A rating in excess of 10 percent is warranted for a lumbar spine disability when the evidence shows: Forward flexion of the thoracolumbar spine greater than 30 degrees or less (40 percent); Favorable ankylosis of the entire thoracolumbar spine (40 percent); or IVDS With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). 38 C.F.R. § 4.71a. DCs 5003, 5242. Prior to October 14, 2015, the Veteran's right lower extremity sciatic radiculopathy was rated at 20 percent under 38 C.F.R. § 4.71a, DC 8520 (addressing sciatic nerve paralysis). A rating in excess of 20 percent is warranted for sciatic nerve radiculopathy when the evidence shows moderately severe incomplete paralysis. 38 C.F.R. § 4.71a. DC 8520. Prior to August 27, 2019, the Veteran's right lower extremity femoral radiculopathy was rated at 20 percent under 38 C.F.R. § 4.71a, DC 8526 (addressing femoral nerve paralysis). A rating in excess of 20 percent is warranted for femoral nerve radiculopathy when the evidence shows severe incomplete paralysis. 38 C.F.R. § 4.71a. DC 8526. After a review of the evidence, the Board finds increased ratings are not warranted for the Veteran's low back or right lower extremity radicular disability during any of the periods on appeal. As a preliminary matter, the Board notes that the Veteran is assigned an 80 percent rating for her right lower extremity sciatic radiculopathy under DC 8520 since October 14, 2015, and a 40 percent rating for right lower extremity femoral radiculopathy under DC 8526 since August 27, 2019. No higher ratings are available under DCs 8520 or 8526 for the Veteran's radicular disabilities. 38 C.F.R. § 4.87, DCs 8520, 8526. As the Veteran is in receipt of the maximum schedular ratings for her radicular disabilities during the periods since October 14, 2015 (for the sciatic nerve), and since August 27, 2019 (for the femoral nerve), the Board cannot assign higher ratings for these disabilities during those periods. The Veteran was afforded VA medical examinations for her low back and associated disorders, including radicular symptoms, in May 2015, May 2017, and in August 2019. She was afforded an examination solely for her radicular disabilities in November 2015. At the May 2015 low back examination, the Veteran reported constant low back pain. She indicated that she did not experience flare-ups but that she treated her pain with Hydrocodone and Morphine. Upon examination, the Veteran displayed forward flexion to 80 degrees and extension to 20 degrees, her combined range of motion was 195 degrees. Painful motion was noted to begin at 70 degrees for her forward flexion and 15 degrees for extension. The Veteran was able to perform repetitive testing with at least three repetitions and there was no documented reduction in her range of motion. The Veteran was found to have localized tenderness to palpation on the lumbar spine and more on the right side. There was no observed guarding or muscle spasm documented. There was no muscle atrophy, ankylosis, or incapacitating episodes of IVDS noted. The Veteran was further noted to have moderate incomplete paralysis of the right lower extremity; no other associated neurologic abnormalities were found. At the Veteran's November 2015 radicular examination, the examiner found that the right lower extremity radiculopathy had incomplete paralysis of a mild severity. Next, at the May 2017 examination, the Veteran reported pain, limitation of motion, and that she topples over easily. She denied any instance of flare-ups. Upon examination, the Veteran displayed forward flexion to 90 degrees, extension to 10 degrees, and a combined range of motion of 190 degrees. The Veteran was able to perform repetitive testing with at least three repetitions and there was no documented reduction in her range of motion. The Veteran was found to have localized tenderness to palpation on the lumbar spine and more on the right side. There was no observed guarding or muscle spasm documented. There was no muscle atrophy, ankylosis, or incapacitating episodes of IVDS noted. The examiner noted that the Veteran did not put forth effort in such a manner to conduct sensory testing of the lower extremities in an adequate manner. There were no other endorsed associated neurological conditions documented. Finally, at the August 2019 examination, the Veteran reported constant lumbar pain with radicular pain in her right leg, as well as decreased endurance, strength, and coordination. The Veteran noted the use of pain medication for various areas, the use of a walker for ambulation, and that she avoids stairs. The Veteran also reported flare-ups about once per month lasting 3 to 5 days at a 10/10 level of pain. She indicated that she lays down until she feels better, and that she is less able to walk when she experiences a flare-up. Upon examination, the Veteran displayed forward flexion to 90 degrees, extension to 20 degrees, and total range of motion to 170 degrees. The examiner noted that the Veteran did not perform repetitive testing due to complaints of pain with repetitive movements. The examiner did not provided estimates for the Veteran's range of motion during flare-ups and noted that the Veteran reported that she must lie down due to lack of stability. However, this does run slightly contrary to other statements from the Veteran at this examination where she stated that she is less able to walk during a flare but not that she is unable to ambulate at all during the occurrence of a flare-up. The examiner found that the Veteran had guarding and muscle spasm that resulted in abnormal gait, there were no other additional factors noted that contribute to the severity of her disability. The Veteran's right lower extremity radiculopathy was found to have moderate incomplete paralysis. There was no endorsed ankylosis of the spine, muscle atrophy, or incapacitating episodes of IVDS. The examiner noted that the Veteran reported loss of urinary and bowel control only during the occurrence of flare-ups, no further neurological complications were endorsed. The examiner did not elaborate on any potential connection between the Veteran's low back disability and her reported urinary and bowel control loss. The examiner provided opinions separately regarding the Veteran's reported urinary incontinence and loss of bowel control and simply noted that they were not noted in the Veteran's medical records. A follow-up opinion was sought in September 2019 and a more thorough explanation was not provided except that the Veteran did not have a current diagnosis for either urinary incontinence or loss of bowel control. However, the Veteran noted that the occurrence of both disorders was relatively new, and thus may not have been extensively documented in medical records at the time of examination. In evaluating the extent of a Veteran's low back disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note 1. While, the Veteran has not been diagnosed with any neurological disabilities associated with her low back disability aside from right lower extremity radiculopathy of the sciatic and femoral nerves, she has reported the occurrence of urinary incontinence and loss of bowel control during flare-ups. The Board that the Veteran, as a lay person, is competent to provide testimony regarding these disorders. Thus, the Board determines that the Veteran should be afforded service connection for both urinary incontinence and loss of bowel control as secondary to her low back disability. No other abnormalities have been endorsed by the Veteran, and her radicular disabilities are discussed at length in this decision. The Veteran's medical records are silent for any indications of symptoms that would support higher ratings for her low back disability during either period on appeal, or for her sciatic or femoral lower right extremity radiculopathy. Indeed, her records document continuing treatment for these disorders but there are no specific measurements, statements, or otherwise that would lead the Board to grant higher ratings for the disabilities on appeal during the periods of appeal. Thus, a rating in excess of 10 percent for a low back disability from March 25, 2015 to August 27, 2019, and in excess of 20 percent thereafter is not warranted. Similarly, ratings in excess of 20 percent for sciatic and femoral right lower extremity radiculopathy prior to October 14, 2015 and August 27, 2019, respectfully, are unwarranted. When considering these ratings, the Board has considered the impact of functional loss in the Veteran's back due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In this case, the Veteran has complained of constant pain, limitation of motion, feelings of instability, and discomfort in relation to sitting or standing for long periods of time. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and her complaints are adequately contemplated in the ratings she currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination, or endurance). Here, while the Veteran has alleged that she is functionally limited due to her low back disability, including while walking, her medical records and VA examinations are silent for any discussion of her being limited to the extent that would indicate that a higher rating was warranted for her low back disability. Of note, the Veteran has indicated that she employs rest, medication, and a heating pad during periods of flare-ups. She also indicated that her walking is more limited during these periods, but not that she cannot walk at all. Additionally, her medical records do not indicate any incapacitating episodes of IVDS at any time during the periods on appeal. Thus, the Board must conclude that while her symptoms during a flare-up are overall more severe, that they do not result in limitation that would prompt a higher rating during any period on appeal. The Board notes that the Veteran has not submitted any relevant clinical evidence, including private examinations or opinions, that would support her claims for higher ratings for her low back disability or right lower extremity sciatic and femoral radiculopathy for the periods on appeal. In considering the appropriate disability ratings, the Board has also considered the statements of the Veteran, that the severity of her low back disability and right lower extremity sciatic and femoral radiculopathy are worse than the ratings currently assigned during the appeal periods. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that a rating in excess of 10 percent for a low back disability from March 25, 2015 to August 27, 2019, and in excess of 20 percent thereafter is not warranted. Similarly, ratings in excess of 20 percent for sciatic and femoral right lower extremity radiculopathy prior to October 14, 2015 and August 27, 2019, respectfully, are unwarranted. Accordingly, the evidence of record does not indicate that the Veteran's low back disability or right lower extremity sciatic and femoral radiculopathy disabilities are more severe than the ratings already assigned to them for the periods on appeal, and her appeal is denied. Service Connection The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 2. Entitlement to service connection for urinary incontinence, to include as secondary to a low back disability 3. Entitlement to service connection for loss of bowel control, to include as secondary to a low back disability As discussed above, the Board has determined that the Veteran currently experiences urinary incontinence and loss of bowel control due to her service-connected low back disability. The Veteran indicated at her August 2019 examination that these disabilities began around May 2019 and occur when she experiences a flare-up of her low back. She also attested to the use of absorbent pads, changing them twice a day. As previously discussed, the Veteran as a lay person, is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on her credible statements, the Board finds that service connection is warranted for her reported urinary incontinence and loss of bowel control. 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. REASONS FOR REMAND 4. Entitlement to a total disability rating based on individual unemployability (TDIU) The Veteran is seeking entitlement to TDIU. She specifically argues that her service-connected disabilities prevent her from maintaining and retaining gainful employment. In an October 2019 rating decision, the RO declined to evaluate TDIU in the period since October 14, 2015 on the basis that, since the Veteran was already in receipt of a 100 percent overall disability rating, TDIU was moot. The RO then denied entitlement to TDIU prior to October 14, 2015 in a subsequent Supplemental Statement of the Case. However, the assignment of an overall 100 percent disability rating does not always render the issue of TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether her disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a Veteran has a 100 percent disability rating for a single disability, and TDIU for a sole disability may satisfy this requirement. See Bradley, 22 Vet. App. at 292 (analyzing 38 U.S.C. § 1114 (s)). Therefore, the Veteran's overall 100 percent disability rating notwithstanding, consideration should still be given to whether TDIU is warranted and, as importantly, which of her service-connected disabilities contribute to her TDIU. Additionally, in the above decision, the Board granted service connection to the Veteran for urinary incontinence and loss of bowel control as secondary to her service-connected low back disability. As the ratings and effective dates to-be-assigned as the result of those grants may have a direct impact on the Veteran's entitlement to TDIU, the Board cannot fully address that issue until such ratings are assigned. Therefore, the Board will remand this issue to allow the RO to assign ratings and effective dates for the issues granted, as ordered above, and reconsider entitlement to TDIU. The matters are REMANDED for the following action: 1. Invite the Veteran to submit any evidence in support of her claim. 2. Obtain any medical records from any VA facility where the Veteran has had care that are not yet associated with the case file. 3. After the RO has assigned disability ratings for the above granted claims, the RO should readjudicate the Veteran's claim of entitlement to TDIU. If TDIU is granted, a factual finding should be made as to what service-connected disabilities contribute to her unemployability. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Hernan, Attorney Advisor