Citation Nr: 21013602 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 02-19 159 DATE: March 9, 2021 REMANDED Entitlement to a separate disability rating for left lower extremity radiculopathy claimed as associated with service-connected residuals of a lumbar spine fracture with DDD is remanded. Entitlement to a separate disability rating for urinary incontinence claimed as associated with service-connected residuals of a lumbar spine fracture with degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1974 to September 1976. The Veteran contends that he is entitled to a separate disability rating for left lower extremity radiculopathy claimed as associated with service-connected residuals of a lumbar spine fracture with degenerative disc disease (DDD). He also contends that he is entitled to a separate disability rating for urinary incontinence claimed as associated with service-connected residuals of a lumbar spine fracture with DDD. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2002 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case originally centered around a claim for increased ratings for a residuals of a lumbar spine fracture with DDD. The case was first before the Board in November 2003. In the November 2003 Board decision, the Board remanded the issue. The case returned to the Board in May 2005, at which time the Board denied the Veteran’s claim. The Veteran appealed the May 2005 Board decision to the United States Court of Appeals for Veterans Claims (Court). In January 2007, the Court granted a Joint Motion for Remand (JMR) by the Veteran and the Secretary of Veterans Affairs (the Parties), and the matter was returned to the Board. The Board remanded the case in February 2008 and denied the Veteran’s claim in January 2012. The Veteran appealed the January 2012 Board decision to the Court; and in August 2012, the Court granted a JMR of the Parties, and the matter was again remanded to the Board. The Board remanded the case in November 2012 and denied the Veteran’s claim again in June 2013. The Veteran appealed the June 2013 Board decision to the Court again; and in November 2014, the Court issued a Memorandum Decision remanding the case back to the Board. The Board remanded the case in March 2016 and denied the Veteran’s claim in December 2017. The Veteran appealed the December 2017 Board decision to the Court again. In October 2018, the Court granted a Joint Motion for Partial Remand (JMPR) of the Parties. At this point, the Veteran chose not to pursue the Board’s denial of an increased rating for residuals of a lumbar spine fracture. The Parties stated that the Board erred by relying on an inadequate medical opinion for its determination that the Veteran was not entitled to separate disability ratings for left leg radiculopathy and urinary incontinence. The Parties observed that the Board noted that the Veteran experienced left leg radiculopathy and urinary incontinence but found that the conditions were not specifically attributed to his lumbar spine disability. This determination was based upon a March 2016 medical opinion in which the examiner opined that the Veteran’s radiculopathy and urinary incontinence were “attributable to the previous [cerebrovascular accident]” from 2000. The Parties found the March 2016 medical opinion was inadequate because it was not supported by any rationale. Thus, the Parties determined that remand was required for the Board to obtain an adequate opinion concerning the Veteran’s left leg radiculopathy and urinary incontinence. This case was last before the Board in April 2019. In the April 2019 Board decision, the Board remanded the case in order to obtain new VA examinations to evaluate the Veteran’s left leg radiculopathy and urinary incontinence. The Veteran underwent new VA examinations for his back, radiculopathy, and urinary incontinence in November 2019, and the VA examiner provided medical opinions in November 2019 and October 2020. The issues have been returned to the Board at this time for further appellate review. 1. Entitlement to a separate disability rating for left leg radiculopathy 2. Entitlement to a separate disability rating for urinary incontinence The law provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c). Such assistance includes providing the claimant with a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Once VA undertakes to provide a medical examination, VA must provide an adequate examination or, at a minimum, notify the claimant why one will not or cannot be provided. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet.App. 303, 311-12 (2007). An examination “is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet.App. 405, 407-08 (1994)); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). The Veteran is currently service connected for residuals of a fracture of the lumbar spine with multilevel degenerative disc disease (DDD) with a 70 percent evaluation, effective June 26, 2000. He is also service connected for radiculopathy of the right leg associated with residuals of a fracture of the lumbar spine with multilevel DDD. At a November 2019 VA examination for the Veteran’s back, the Veteran reported that he had left leg radiculopathy related to his lumbar spine condition. He also noted that he suffered a cerebrovascular accident (CVA) in 2000, which resulted in him having left-sided hemiparesis. Concerning radiculopathy, the Veteran reported having moderate bilateral constant pain, severe bilateral intermittent pain, moderate bilateral paresthesias and/or dysesthesias, and moderate bilateral numbness. The examiner found that the Veteran had mild bilateral radiculopathy. The examiner remarked that the Veteran’s left leg radiculopathy is not discernable from his left sided hemiparesis secondary to CVA in 2000, and there is no documentation of him having left-sided radiculopathy prior to having suffered a CVA in 2000. In a related medical opinion, the November 2019 VA examiner found that the claimed conditions were less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected lumbar spine disability. The November 2019 VA examiner found that the Veteran’s left leg radiculopathy is not discernible from his left sided hemiparesis secondary to CVA in 2000. The VA examiner also found that the Veteran’s claimed conditions were less likely than not aggravated beyond their natural progression by his lumbar spine disability. The examiner opined that it would be speculative if his left sided numbness is secondary to stroke only or stroke and left sided radiculopathy secondary to DDD of the lumbar spine. In an October 2020 addendum opinion, the November 2019 VA examiner also noted that, since the stroke, the Veteran has had left sided hemiparesis where he is unable to move or feel the left side of his body. The November 2019 VA examiner also stated that there is no documentation of the Veteran having left sided radiculopathy or left sided numbness prior to having suffered a CVA in 2000. However, the record indicates that the Veteran experienced and reported symptoms of bilateral numbness prior to his CVA in May 2000. In an August 1998 private treatment note, the Veteran complained of bilateral lumbar spine pain and tingling in the right lower extremity, and he complained that the right or bilateral lower extremities were numb. In a February 1999 private consultation sheet for neurosurgery, the Veteran reported continued lower back pain with radiation to the bilateral hips. In a September 1999 physical therapy note, the Veteran complained of bilateral and central lower back pain with occasional numbness in the bilateral lower extremities. In an August 1999 Lumbar Spine Assessment from the McKenzie Institute, the Veteran reported numbness in the bilateral lower extremities. In an August 1999 VA Physical Therapy Initial Evaluation Note, the Veteran complained of bilateral and central lower back pain and occasional numbness in the lower extremities. At a November 2019 VA examination concerning the Veteran’s urinary incontinence, the Veteran reported that his urinary incontinence had its onset in 1975. The VA examiner noted that the Veteran has a voiding dysfunction that causes urine leakage, but it does not require the wearing of absorbent material. In the November 2019 VA medical opinion, the VA examiner stated that there is no documentation of the Veteran having urinary incontinence, and he is not currently being treated for any urinary condition. The examiner also stated that the Veteran lacks any specific objective finding of having this condition. However, this is inconsistent with the evidence of record. In a March 2006 Statement of Attending Physician, the Veteran complained of urine incontinence. At a February 2012 VA examination for central nervous system and neurovascular disease, the examiner noted that the Veteran had a voiding dysfunction that caused urine leakage, but it did not require absorbent material. In an October 2014 VA Emergency Department E&M Note, the Veteran was noted to have a history of urinary incontinence. In a December 2015 Primary Care Physician Note, the Veteran stated that he feels like he has some leakage when getting up since 2000, and the examiner gave an assessment of urinary incontinence. At a March 2016 VA examination for the Veteran’s back, the Veteran reported urinary incontinence that began several years ago, though he was not certain whether the incontinence is related to the back condition or to his CVA with left hemiparesis from 2000. In a June 2016 Emergency Department E&M Note, the Veteran stated that he has had chronic leakage since 1975. A March 2018 Primary Care Physician Note stated that the Veteran continued to have stress urinary incontinence (SUI) due to lumbar injury, and the examiner stated that his urinary incontinence is a worrisome symptom. In a November 2018 Urology Consult, the Veteran complained of urine leakage and bladder incontinence of unknown cause. The Veteran reported occasional urine drops on his legs and thighs, especially when he wakes up or is getting up. The leaking was mostly seen with severe back pain. He also had end dribbling after the first morning voiding. The leaking gets better as the day progresses. He denied any bladder spasm or pain. The examiner gave an assessment of occasional few drops of urine seen on his thighs and legs when he has severe back pain, and she stated that this may be associated with the back injury. The Veteran reported that this had been going on for many years. In a December 2018 Nursing Telephone Encounter Note, the Veteran asked to be tested for neurogenic or urodynamic bladder so he can document that it is related to his spinal cord injury. He stated that he had been to the neurologist in November, and the neurologist told him that it was not related to his bladder and was related to the spinal cord injury in 1975. He reported having little splashes if incontinence ever since the spinal cord injury. In a December 2018 Addendum, the Veteran requested UDS to confirm that his occasional urine leakage is from his spinal cord injury. In a January 2019 Physical Medicine Rehab Consult, the Veteran reported that he was undergoing a urology evaluation for symptoms of some urine mild incontinence with standing up from a seated position; the Veteran attributed the urinary symptoms to his back injury, as they have been present since 1975. In a March 2019 Urology Attending Note, the examiner gave an assessment of very mild urinary incontinence with minimal urinary symptoms. There was no evidence of uninhibited contractions or bladder spasms. However, the examiner discussed that, if there were, it would be most likely due to his CVA in 2000 rather than his back pain. Also, with such small volume incontinence (drops) and occasionally straining to empty and double voiding, along with finding of slightly enlarged coapting prostate, if the Veteran desired treatment, the examiner recommended starting with medication aimed at the prostate, not overactive bladder. The Veteran declined treatment. The Veteran also questioned the examiner’s diagnosis and etiology, stating that he had been leaking since his back injury when he was 20 years old. The examiner noted that urinary incontinence due to uninhibited contractions after CVAs is very common, and it is therefore likely that, if the Veteran has uninhibited contractions not seen on today’s study, they are related to his CVA in 2000 and not ongoing back issues. In a March 2019 Urology Outpatient Note, the Veteran reported a 30-year history of incontinence. He noted occasional drops of urine on the legs and thighs especially when he wakes up, sits up, or stands up. The examiner gave an assessment of incontinence most consistent with SUI. In a September 2019 Urology Outpatient Note, the Veteran again complained of urinary incontinence, including post-void dribbling. The examiner again discussed that, if there were uninhibited contractions or bladder spasms, it would most likely be due to his CVA in 2000 rather than back pain. Based on the above, the Board finds that, concerning the Veteran’s left leg radiculopathy and urinary incontinence, the November 2019 VA examiner formulated his medical opinions based on an incorrect or incomplete view of the evidence of record. Thus, the Board finds that remand is necessary to obtain new VA medical opinions concerning whether the Veteran’s left leg radiculopathy and urinary incontinence are secondary to his service-connected residuals of a lumbar spine fracture with DDD. In formulating his or her opinions, the VA examiner should review the entire claims file, including the Veteran’s VA and private treatment records, as well as the Veteran’s lay statements. The examiner should provide complete rationales for all opinions and conclusions reached, citing the objective medical findings and addressing the relevant evidence of record. Accordingly, the matters are REMANDED for the following actions: 1. Ask the appropriate medical examiner to provide a medical opinion concerning the nature and etiology of the Veteran’s left lower extremity radiculopathy. The opinion should be provided by a VA examiner who has not previously examined the Veteran. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The entire claims file must be made available to and reviewed by the examiner in conjunction with the medical opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The report should include discussion of the Veteran’s documented medical history from both VA and private medical records, as well as the Veteran’s assertions. If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required or the examiner does not have the needed knowledge or training). The examiner must provide the following: (a) Provide a medical opinion as to whether it is as least as likely as not (50 percent probability or greater) that any left lower extremity radiculopathy suffered by the Veteran was incurred in, caused by, aggravated by, or otherwise related to his active service. The examiner must consider the Veteran’s entire medical history, both during and after active service. This includes but is not limited to any treatment of back conditions, as well as treatment for bilateral lower extremity numbness and/or other radiculopathy symptoms. The examiner must consider and address the lay evidence of record, including but not limited to statements by the Veteran. The examiner should consider and address any evidence contained in these statements regarding any onset of symptomatology and continuity of symptomatology since onset and/or since discharge from service. The examiner is advised that the Veteran is competent to report his symptoms and history. If lay assertions in any regard are discounted, the examiner should clearly so state and explain why. The examiner should consider any other pertinent evidence of record, as appropriate. (b) Provide a medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that any left lower extremity radiculopathy suffered by the Veteran was caused by or a result of his service-connected residuals of a fracture of the lumbar spine with multilevel degenerative disc disease (DDD). The examiner must consider and address the Veteran’s entire medical history, including but not limited to any treatment of back conditions, as well as treatment for bilateral lower extremity numbness and/or other radiculopathy symptoms. The examiner must consider and address the lay evidence of record, including but not limited to statements by the Veteran. The examiner should consider and address any evidence contained in these statements regarding any onset of symptomatology and continuity of symptomatology since onset and/or since discharge from service. The examiner is advised that the Veteran is competent to report his symptoms and history. If lay assertions in any regard are discounted, the examiner should clearly so state and explain why. The examiner should consider any other pertinent evidence of record, as appropriate. (c) Provide a medical opinion as to whether it is as least as likely as not (50 percent probability or greater) that any left lower extremity radiculopathy suffered by the Veteran was chronically worsened beyond its natural progression (aggravated) by his service-connected residuals of a fracture of the lumbar spine with multilevel DDD. The examiner must consider and address the Veteran’s entire medical history, including but not limited to any treatment of back conditions, as well as treatment for bilateral lower extremity numbness and/or other radiculopathy symptoms. The examiner must consider and address the lay evidence of record, including but not limited to statements by the Veteran. The examiner should consider and address any evidence contained in these statements regarding any onset of symptomatology and continuity of symptomatology since onset and/or since discharge from service. The examiner is advised that the Veteran is competent to report his symptoms and history. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner should consider any other pertinent evidence of record, as appropriate. All findings by the examiner should be reported in detail, and all opinions must be accompanied by a clear and complete rationale. 2. Ask the appropriate medical examiner to provide a medical opinion concerning the nature and etiology of the Veteran’s urinary incontinence. The opinion should be provided by a VA examiner who has not previously examined the Veteran. The necessity of an in-person examination, with any appropriate testing, is left to the discretion of the examiner. The claims file must be made available to and reviewed by the examiner in conjunction with the medical opinion. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. The report should include discussion of the Veteran’s documented medical history from both VA and private medical records, as well as the Veteran’s assertions. If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required or the examiner does not have the needed knowledge or training). The examiner must provide the following: (a) Provide a medical opinion as to whether it is as least as likely as not (50 percent probability or greater) that any urinary incontinence suffered by the Veteran was incurred in, caused by, aggravated by, or otherwise related to his active service. The examiner must consider and address the Veteran’s entire medical history, both during and after active service. This includes but is not limited to any treatment of back conditions, as well as treatment for any urinary incontinence or leakage. The examiner must consider and address the lay evidence of record, including but not limited to statements by the Veteran. The examiner should consider and address any evidence contained in these statements regarding any onset of symptomatology and continuity of symptomatology since onset and/or since discharge from service. This includes any statements by the Veteran that his urinary incontinence began in 1975 after his back injury. The examiner is advised that the Veteran is competent to report his symptoms and history. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner should consider any other pertinent evidence of record, as appropriate. (b) Provide a medical opinion as to whether it is at least as likely as not (50 percent probability or greater) that any urinary incontinence suffered by the Veteran was caused by or a result of his service-connected residuals of a fracture of the lumbar spine with multilevel degenerative disc disease (DDD). The examiner must consider and address the Veteran’s entire medical history, including but not limited to any treatment of back conditions, as well as treatment for any urinary incontinence or leakage. The examiner must consider and address the lay evidence of record, including but not limited to statements by the Veteran. The examiner should consider and address any evidence contained in these statements regarding any onset of symptomatology and continuity of symptomatology since onset and/or since discharge from service. This includes any statements by the Veteran that his urinary incontinence began in 1975 after his back injury. The examiner is advised that the Veteran is competent to report his symptoms and history. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner should consider any other pertinent evidence of record, as appropriate. (c) Provide a medical opinion as to whether it is as least as likely as not (a 50 percent probability or greater) that any urinary incontinence suffered by the Veteran was chronically worsened beyond its natural progression (aggravated) by his service-connected residuals of a fracture of the lumbar spine with multilevel DDD. The examiner must consider and address the Veteran’s entire medical history, including but not limited to any treatment of back conditions, as well as treatment for any urinary incontinence or leakage. The examiner must consider and address the lay evidence of record, including but not limited to statements by the Veteran. The examiner should consider and address any evidence contained in these statements regarding any onset of symptomatology and continuity of symptomatology since onset and/or since discharge from service. This includes any statements by the Veteran that his urinary incontinence began in 1975 after his back injury. The examiner is advised that the Veteran is competent to report his symptoms and history. If lay assertions in any regard are discounted, the examiner should clearly so state, and explain why. The examiner should consider any other pertinent evidence of record, as appropriate. All findings by the examiner should be reported in detail, and all opinions must be accompanied by a clear and complete rationale. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.