Citation Nr: 21032177 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 12-35 610 DATE: May 26, 2021 ORDER A separate rating for urinary incontinence associated with degenerative disc disease with intervertebral disc syndrome (IVDS), status post laminectomy, is denied. FINDING OF FACT The Veteran does not have urinary incontinence associated with his service-connected degenerative disc disease with IVDS, status post laminectomy. CONCLUSION OF LAW The criteria for a separate rating for urinary incontinence associated with degenerative disc disease with IVDS, status post laminectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243, General Rating Formula for Diseases and Injuries of the Spine, Note (1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1982 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, the Veteran testified before a Decision Review Officer at the RO and, in January 2016, at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the record. In March 2016, the Board remanded the issue on appeal for additional development and, in July 2018, denied the claim. The Veteran subsequently appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted the Veteran's and the Secretary of VA's (the parties') Joint Motion for Remand (JMR), which vacated and remanded the Board's July 2018 decision. In June 2019, June 2020, and January 2021, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to a separate rating for urinary incontinence associated with service-connected degenerative disc disease with IVDS and laminectomy. The Veteran contends he has urinary incontinence associated with his service-connected degenerative disc disease with IVDS. In this regard, he testified at his Board hearing that he wears absorbent material because of incontinence. While he indicated that such was primarily for stool incontinence, for which he is service-connected, he also stated that he has loose bladder control. Initially, the Board notes that the instant matter arose from an increased rating claim for a lower back disability, which is rated under DC 5243 pursuant to the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Note (1) of the General Rating Formula states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Thus, the Veteran could be entitled to a separate rating for bladder impairment (urinary incontinence) if it is determined that he has such objective neurological abnormality associated with his lower back disability. In the March 2016 remand, the Board observed that, in addition to the Veteran's January 2016 Board hearing testimony, the record included VA and private treatment records that suggested the presence of urinary incontinence. Specifically, an August 2009 private treatment record reflects a finding of intermittent urinary incontinence. An August 2013 VA treatment record reflects that the Veteran reported a new onset of bowel and bladder incontinence over the prior three to four months. In this regard, he indicated having two to three accidents a week, usually associated with severe low back pain, during which he felt the sensation to defecate urgently and cannot make it to a restroom in time; however, he did not describe the nature of the alleged urinary incontinence. Similarly, a September 2013 private treatment record reflects the Veteran's report of incontinence of urine and stool for the prior three months and, in a January 2014 VA treatment record, he reported intermittent bladder incontinence and was wearing pads. As such, the Board remand the claim in order to afford the Veteran a VA examination so as to determine whether he had a diagnosis of urinary incontinence related to his lower back disability. In July 2016, the Veteran underwent such examination and, at that time, the examiner found that he did not have, and had never been diagnosed with, a condition of the bladder or urethra of the urinary tract. In this regard, she noted that the Veteran adamantly reported at the examination that he did not have any bladder or urethra disorder, to include urinary incontinence. The examiner further observed that, while he reported stool incontinence, he denied urinary incontinence. Further, at a separate VA male reproductive system examination conducted the same date, the Veteran stated he had not been diagnosed with a condition of the bladder or urethra. As noted supra, the Board denied a separate rating for urinary incontinence in July 2018, based primarily on the July 2016 examiner's opinion. However, in the June 2019 JMR, the parties found that the July 2016 VA opinion did not comply with the Board's March 2016 remand directives as the examiner did not address all of the inquiries. Further, her finding did not comport with the Veteran's prior medical history of urinary incontinence as demonstrated in the aforementioned VA and private treatment records. Consequently, the case was remanded November 2019 in order to obtain a new VA examination so as to determine whether the Veteran has urinary incontinence associated with his lower back disability. In the interim, subsequent VA treatment records continued to reflect conflicting reports regarding the presence of urinary incontinence. In this regard, VA treatment records dated April 2019, July 2019, and January 2021 reflect he stated he had no problem with urinary incontinence. Additionally, at an October 2019 VA spine examination, the Veteran denied having bladder or bowel dysfunction. Conversely, in January 2019, March 2019, and June 2019, the Veteran reported, respectively, wearing absorbent pads for the past 7 years because of intermittent urinary accidents, experiencing urinary incontinence that started after his low back surgery, and urinary incontinence 2 to 3 times a week. In January 2020, the Veteran underwent another VA examination, at which time urinary incontinence was diagnosed. However, the examiner opined that such disorder is less likely than not proximately due to or the result of, or aggravated beyond its natural progression by, the Veteran's lumbar laminectomy in 2010. In support thereof, he noted that there were inconsistencies in the medical record such that they mention intermittent incontinence, whereas the Veteran reported complete incontinence at the examination. The examiner also stated that, while he was unable to find the records cited by the Board, the cited August 2009 record pre-dated his laminectomy that he claimed caused his incontinence, and VA treatment records showed no mention of incontinence as late as 2016 as reflected in January 2010, August 2011, November 2012, February 2013, March 2014, and March 2016 records. However, the examiner did not offer an opinion as to whether the Veteran's urinary incontinence is associated with his service-connected lower back disability, did not explain the significance of the distinction between incomplete and complete urinary incontinence or why the Veteran's inconsistent report of such was material, or consider the aforementioned treatment records reflecting urinary incontinence. Thus, the Board remanded the case for an addendum opinion. Pursuant to the June 2020 Remand, the Veteran underwent VA examination via video telehealth in July 2020, the associated report of which indicates the Veteran did not have a diagnosis of voiding dysfunction. In this regard, the examiner noted the Veteran's subjective reports of such symptomatology, but found there was no objective findings to suggest a pathology and no organic etiology identifiable in the records. He also noted the records were conflicting in that most entries reflected reports of fecal incontinence rather than urinary problems. Further, the most recent entries did not indicate any urinary incontinence, to the extent that such was not mentioned on the Veteran's VA problem list. Additionally, he noted a June 2019 magnetic resonance imaging scan (MRI) of the Veteran's lumbar spine did not show any cauda equina syndrome, which is the lesion that causes bladder and bowel incontinence. According to the VA examiner, the MRI showed no structural lesion that can cause incontinence, which was further supported by a nerve conduction study performed in July 2019. Specifically, such indicated that, from a signal/electrical viewpoint, there were no issues with the spinal nerves going to the bladder and anal area. Furthermore, the VA examiner found pertinent that rectal examination in July 2019 showed the "external sphincter demonstrates good tone and reflex", thereby indicating that the pudendal nerve, which mediates urination, defecation, and orgasm, was intact. Moreover, a June 2019 cystoscopy showed no bladder neck lesions and the urology visits and consults were "very quiet" regarding the issue of urinary incontinence. Thus, the VA examiner found that the presence of urinary incontinence was unlikely from anatomic/structural, electrical, and functional aspects, and concluded it is less likely than not that the Veteran's claimed urinary incontinence was proximately due to, the result of, or aggravated by his service-connected back disability. Conversely, an October 2020 VA treatment record indicates a nurse practitioner discussed with the Veteran his incontinence issues, post-void residual, and the medication Oxybutynin (prescribed for bladder spasms) to help control his incontinence issues, which he indicated were "presumably secondary to his lower back surgery." Notably, the nurse practitioner did not provide a rationale for his statement and, thus, the Board affords it no probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Nevertheless, given the indication of the favorable nature of such record in connection with the claim on appeal, and the July 2020 VA examiner's inability to review and comment upon such future information, the Board again remanded the case in order to obtain an addendum opinion considering the evidence of record in its entirety. In February 2021, after interviewing the Veteran, performing an extensive review of the record, and conducting a physical examination, a VA examiner opined the Veteran's urinary urge incontinence, which he noted was diagnosed in 2009, was less likely than not associated with, proximately due to, the result of, or aggravated by the Veteran's service-connected lower back disability. In support thereof, he stated there was no biomedical explanation that would link the Veteran's current claimed urinary issues to lumbar pathology or surgery for lumbar pathology. Although the examiner stated there is no documentation of complaints of urinary incontinence until 2019, he also cited the aforementioned treatment records showing that such complaints began as early as 2009, which was also the date he noted in his contemporaneous report. Thus, it appears that the citation to 2019 is a typographical error. Nonetheless, as will be further discussed below, the basis of the VA examiner's opinion stems from the lack of physical findings demonstrating a relationship between the Veteran's urinary incontinence and his lower back disability and, therefore, the date of onset of his symptoms is irrelevant in such regard. Moreover, the Board finds that, when reading the opinion as a whole, the examiner's opinion sufficiently informs the Board of his judgment on the medical question at issue and the "essential rationale" for his opinion Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293-4 (2012). In this regard, the VA examiner explained that, for urinary incontinence to be associated with a lumbar spine disability, there must be evidence of pathology known to interfere with spinal regulation of urinary control. Specifically, he noted that the record showed the Veteran maintained good rectal control, and did not have cauda equina syndrome or impingement of the nerves related to bladder control. Specifically, June 2019 magnetic resonance imaging (MRI) of the lumbar spine showed no evidence of cauda equina syndrome. The record also contains no evidence of saddle anesthesia (a loss of sensation restricted to the area of the buttocks, perineum and inner surfaces of the thighs). In fact, in March 2019, the Veteran denied having such issue. Thus, the VA examiner indicated that he disagreed with the October 2020 nurse practitioner's statement assessment in light of the lack of biomedical evidence. The Board affords great probative weight to the July 2020 and February 2021 VA examiners' opinions as such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez; supra; Stefl, supra. Conversely, in March 2021, the Veteran submitted a report from a private physician, Dr. S.B., in which he stated that, after a review of the record, the Veteran's urinary incontinence is more likely than not secondary to his service-connected lower back disability. In support thereof, Dr. S.B. cited several medical articles that discuss the association between urinary incontinence and spinal disorders. However, as rationale, Dr. S.B. stated that "an association may exist between low back pain [LBP] and sacral plexus autonomic function, though the precise mechanisms underlying urinary incontinence and its related physical symptoms are unknown." Further, "studies show a possible association between LBP and bladder dysfunction." However, as such opinion is based on medical treatises only showing a possible relationship between urinary incontinence and a lower back disability, and does not take into consideration the objective findings on imaging tests, i.e., the lack of cauda equina syndrome, which, as previously noted by numerous examiners, is the mechanism that causes urinary incontinence as a result of lumbar pathology, it is afforded no probative weight. Id. The Board notes that, while the Veteran has reported urinary leakage, the medical evidence fails to demonstrate urinary incontinence associated with his service-connected degenerative disc disease with IVDS, status post laminectomy. In this regard, while the Veteran is competent to report experiencing urinary leakage, he is not competent as a lay person to relate such complaints to a diagnosed neurological impairment associated with his lower back disability. Specifically, the question of a diagnosis of urinary incontinence as a neurological impairment associated with the Veteran's back disability involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the medical evidence of record failing to reveal a diagnosis of urinary incontinence associated with his service-connected degenerative disc disease with IVDS, status post laminectomy, is afforded greater probative weight. Therefore, in light of the fact that the most probative evidence reveals that the Veteran does not have urinary incontinence associated with his service-connected degenerative disc disease with IVDS, status post laminectomy, a separate rating for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for urinary incontinence. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. M. Kelly, 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.