Citation Nr: 21073125 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 14-28 685A DATE: December 7, 2021 ORDER Entitlement to an initial 20 percent rating, but no higher, for service-connected chronic low back strain and mid back strain (thoracolumbar spine disability) prior to June 17, 2014 is granted. Entitlement to a 40 percent rating, but no higher, for service-connected thoracolumbar spine disability from June 17, 2014 is granted. Entitlement to a compensable rating for bowel incontinence is denied. Entitlement to a compensable rating for bladder incontinence is denied. FINDINGS OF FACT 1. Prior to June 17, 2014, the Veteran's service-connected thoracolumbar spine disability was manifested by muscle spasms; his disability was not manifested by forward flexion of 30 degrees or less, favorable ankylosis, unfavorable ankylosis. 2. From June 17, 2014, the Veteran's service-connected thoracolumbar spine disability was manifested by forward flexion of 30 degrees or less; his disability was not manifested by unfavorable ankylosis. 3. The Veteran's bowel incontinence was not manifested by frequent episodes of bowel disturbance with abdominal distress as well as diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 4. The Veteran's bladder incontinence did not require the use of any absorbent materials. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating for service-connected thoracolumbar spine disability prior to June 17, 2014 have been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 2. The criteria for a 40 percent rating, but no higher, for service-connected thoracolumbar spine disability from June 17, 2014 have been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 3. The criteria for a compensable rating for bowel incontinence have not been met. See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.114, Diagnostic Code 7319. 4. The criteria for a compensable rating for bladder incontinence have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.115B, Diagnostic Code 7517. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from July 2005 to August 2009. He passed away on March 20, 2021. In June 2021, the Veteran's surviving spouse was recognized as the substitute appellant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were remanded by the Board in January 2020 and in July 2020 for further development. An August 2021 rating decision granted a separate rating for service connection for bladder incontinence noncompensable effective June 17, 2014 and granted a separate rating for service connection for bowel incontinence noncompensable effective June 17, 2014. Increased Ratings The Veteran's service-connected thoracolumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. 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. See 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). Further, in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Court held that an examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated. 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."). A rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Entitlement to an initial 20 percent rating, but no higher, for service-connected thoracolumbar spine disability prior to June 17, 2014 is granted. The Appellant asserts that an initial rating in excess of 10 percent is warranted for the Veteran's service-connected thoracolumbar spine disability prior to June 17, 2014. The Board finds that a rating of 20 percent, but no higher, is warranted. The Veteran was provided a VA examination in November 2009, and the VA examiner found that he had a normal gait. The range of motion for forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were normal. His forward flexion was 90 degrees. Leg raises were negative on both sides. There were no sensory or motor deficits noted in the lower extremities. San Francisco VAMC records from March 2011 show that the Veteran denied loss of continence or difficulty voiding. San Francisco VAMC records from August 2012 show that the Veteran denied bowel or bladder incontinence. Central California HCS records from September 2013 show that the Veteran denied bowel or bladder incontinence. Palo Alto HCS records from April 2014 show that the Veteran denied significant bowel or bladder symptoms. The record fails to show a diagnosis for IVDS. Central California CHS records from June 2013 show that the Veteran suffered from muscle spasms and was taking cyclobenzaprine, oxycodone, and ibuprofen. The record indicates that he had been taking cyclobenzaprine since at least January 2010 for muscle spasms. A November 2013 private treatment record noted subjective complaints of radiculopathy. A May 2014 electromyography (EMG) nerve conduction study found no objective evidence of radiculopathy. A June 2021 VA medical opinion reviewed the November 2013 treatment record and May 2014 EMG and determined that there was no objective evidence of nerve root involvement and no basis to warrant a diagnosis of radiculopathy. The Board finds that a separate rating for radiculopathy is not warranted because the May 2014 EMG and the June 2021 VA medical opinion more weight than the November 2013 treatment records. A separate rating for any other neurologic abnormalities related to the spine condition is not warranted as the Veteran denied having any such neurologic abnormalities such as bowel or bladder problems. The Board finds that a 20 percent rating, but no higher, is warranted based on muscle spasms. A rating in excess of 20 percent is not warranted as the Veteran's back disability was not manifested by forward flexion of 30 degrees or less, favorable ankylosis, or unfavorable ankylosis. The Board acknowledges that the Veteran is competent to report symptoms of his back disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability nor to diagnose additional or secondary disabilities. Such competent evidence concerning the nature and extent of the Veteran's service-connected back disability has been provided by VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board affords the objective medical findings substantial weight. Thus, an initial rating of 20 percent, but no higher is warranted. Entitlement to a 40 percent rating, but no higher for service-connected thoracolumbar spine disability from June 17, 2014 is granted. The Appellant asserts that a rating in excess of 20 percent is warranted for the Veteran's service-connected thoracolumbar spine disability from June 17, 2014. The Board finds that the medical evidence of record shows that a 40 percent rating, but no higher, is warranted from June 17, 2014. The Veteran was afforded a VA examination in June 2014, and the examiner found that forward flexion was 40 degrees and objective evidence of painful motion began at 30 degrees. Extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation were 10 degrees and objective evidence of painful motion began at 10 degrees. He declined to do repetitive testing due to extreme pain and muscle spasms. Functional loss was described as less movement than normal, weakened movement, and pain on movement. Pain limited bending and twisting during flare-ups. There was an additional 5 degrees loss in range of motion during flare-ups. There was tenderness on palpation over the lumbar area. There was abnormal gait and abnormal spinal contour. Muscle strength was 4/5 for hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. No muscle atrophy was observed. Reflex was hyperactive without clonus for the knee and ankle. The sensory examination was normal. He was unable to perform straight leg raising test. He did not have any radicular pain or any other signs or symptoms due to radiculopathy. He reported bowel and bladder incontinence. He did not have IVDS. He reported using a cane constantly for normal mode of locomotion. There was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. He did not have any scars. A June 2021 VA medical opinion was provided regarding neurological abnormalities secondary to the Veteran's low back disability. The VA examiner determined that his bowel incontinence and bladder incontinence were proximately due to or the result of his service-connected low back disability. The VA examiner determined that there was no objective evidence of radiculopathy as noted in the May 2014 EMG nerve conduction study and June 2014 VA examination. There was only the subjective evidence of radiculopathy in a November 2013 private treatment record. As an initial matter, the Board will address the bowel and bladder incontinence in a separate section below. As to radiculopathy, there is no basis to assign a separate rating. In coming to this conclusion, the Board has considered the VA examinations, treatment records, and the Veteran's lay statements. The VA examiners determined that there was no objective evidence of nerve root involvement and no basis to warrant a diagnosis. The Board affords the VA examiner's June 2021 medical opinion and June 2014 VA examination greater weight than the treatment records as a thorough rationale was provided. A 40 percent rating, but no higher, is warranted as the Veteran's forward flexion was 30 degrees or less i.e., 30 degrees when considering pain or 25 degrees during flare-ups. A rating in excess of 40 percent is not warranted as the Veteran's back disability was not manifested by ankylosis. The Board acknowledges that the Veteran is competent to report symptoms of his back disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability nor to diagnose additional or secondary disabilities. Such competent evidence concerning the nature and extent of the Veteran's service-connected back disability has been provided by VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board affords the objective medical findings substantial weight. Thus, the objective evidence weighs in favor of a 40 percent rating, but no higher, from July 17, 2014. Bowel Incontinence In August 2021, the RO awarded a separate rating for bowel incontinence secondary to the Veteran's thoracolumbar spine disability, effective June 17, 2014, the date his VA examination showed objective findings of bowel incontinence. He was assigned a noncompensable rating. The Veteran's bowel incontinence is rated under 38 C.F.R. § 4.115(b), Diagnostic Code 7319. Under Diagnostic Code 7319, mild symptoms characterized by disturbances of the bowel function with occasional episodes of abdominal distress warrant a noncompensable initial rating. A 10 percent rating is warranted for moderate symptoms including frequent episodes of bowel disturbance with abdominal distress. Severe symptoms, such as diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress warrant the highest rating of 30 percent. The VA examinations and treatment records are silent for frequent episodes of bowel disturbance with abdominal distress as well as diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. Accordingly, his disability meets the criteria for a noncompensable rating under Diagnostic Code 7319 and at no period during the appeal is a compensable rating evaluation warranted. Bladder Incontinence In August 2021, the RO granted the Veteran a separate rating for bladder incontinence secondary to his thoracolumbar spine disability, effective June 17, 2014, the date his VA examination showed objective findings of bladder incontinence. He was assigned a noncompensable rating. The Veteran's bladder incontinence is rated under 38 C.F.R. § 4.115(b), Diagnostic Code 7517. The regulation directs that disabilities rated under this code should be rated as voiding dysfunction. See 38 C.F.R. § 4.115(b), Diagnostic Code 7517. Voiding dysfunction should be rated as urine leakage, urinary frequency, or obstructed voiding. Of the three, voiding dysfunction best encapsulates the Veteran's symptoms. Voiding dysfunction requiring the use of absorbent materials which must be changed less than 2 times per day warrants a 20 percent rating. The VA examinations and treatment records are silent as to the use of any absorbent materials. Accordingly, his disability meets the criteria for a noncompensable rating under Diagnostic Code 7517 and at no period during the appeal is a compensable rating evaluation warranted. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.