Citation Nr: 21032893 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 14-34 749 DATE: May 28, 2021 ORDER Entitlement to service connection for bladder cancer (identified as high grade papillary urothelial carcinoma) is denied. Entitlement to an initial rating in excess of 20 percent for a degenerative disc disease of the lumbar spine is denied. Entitlement to an earlier effective date of July 19, 2004 for the award of service connection for degenerative disc disease of the lumbar spine, is granted. REMANDED Entitlement to service connection for diabetes mellitus, type II (DM), including as due to exposure to herbicide agents or to other environmental hazards, is remanded. Entitlement to service connection for bilateral lower extremity radiculopathy, secondary to degenerative disc disease of the lumbar spine. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to September 2, 2010, is remanded. FINDINGS OF FACT 1. There is no competent evidence in the record that demonstrates the Veteran's currently diagnosed bladder cancer was manifest during service or that there is a nexus between the current bladder cancer and the Veteran's active duty service. 2. Over the entire period on appeal, the Veteran's lumbar spine disability was manifested by an abnormal gait or by forward flexion of less than 60 degrees but not less than 30 degrees; there was no limitation of forward flexion to less than 30 degrees and no spinal ankylosis. 3. The Veteran filed a claim seeking service connection for a low back disability on July 19, 2004. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bladder cancer are not met. 38 U.S.C. §§ 1131 , 5107(b); 38 C.F.R. §§ 3.102 , 3.303, 3.309(f). 2. Over the entire appeal period, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237-5243. 3. The criteria for an effective date of July 19, 2004 for service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to October 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2012, October 2017, and August 2018 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2017, the Veteran testified at a hearing before the undersigned. In June 2018 and February 2020, the Board remanded the claim for additional development. The Board notes that the February 2020 statement of the case (SOC) addressed the claim of entitlement to an increased initial rating for a back disability and entitlement to an earlier effective date for the grant of service connection for a back disability. The Veteran perfected an appeal of the claim seeking an increased initial rating by submitting an April 2020 substantive appeal (VA Form 9). Although he did not indicate his desire to continue the appeal seeking an earlier effective date, the Board takes jurisdiction over this issue. The claim is addressed below. See Percy v. Shinseki, 23 Vet. App. 37, 46 (2009) (holding the filing of a substantive appeal is not jurisdictional and may be waived by VA either explicitly or implicitly.) The Board finds that the issue of entitlement to separate evaluations for right and left lower extremity radiculopathy are raised by the record based on the diagnosis bilateral sciatic radiculopathy included in a December 2013 VA disability benefits questionnaire (DBQ) submitted by the Veteran. As the Board retains jurisdiction over such issues as part and parcel of the Veteran's increased rating claim for a lumbar spine disability, they are listed on the title page of this decision and addressed below. 38 C.F.R. § 4.71a , Diagnostic Code 5237, Note (1). A TDIU is established from September 2, 2010. However, a TDIU is not applied over the entire appeal period for the claim seeking an initial increased rating for a back disability. Evidence of record, including an April 2010 TDIU claim form, indicates the Veteran was not employed prior to September 2, 2010. The issue of entitlement to a TDIU, prior to September 2, 2010, is raised by the record and addressed below. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. Wood v. Derwinski, 1 Vet. App. 190 (1991); Washington v. Nicholson, 19 Vet. App. 362 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). 1. Entitlement to service connection for bladder cancer (identified as high grade papillary urothelial carcinoma) Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110 ; 38 C.F.R. § 3.303 . The evidence must show (1) the existence of a current disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Here, the evidence reflects the Veteran was diagnosed with high-grade papillary urothelial carcinoma in his bladder in June 2017. There is no evidence bladder cancer was onset during his active service. In September 2018, the Veteran submitted a statement, associated with his notice of disagreement (NOD), indicating his cancer was caused by in-service exposure to herbicide agents and known carcinogens. A November 2018 letter asked the Veteran to provide medical evidence linking bladder cancer to herbicide agents and information about his claimed in-service exposure to carcinogens. The Veteran did not respond to the letter. The Veteran, as a layperson is not competent to provide an opinion as to the cause of a complex medical condition such as bladder cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). There is no competent medical evidence of a link between his current bladder cancer condition and any injury, event, or exposure in-service. In the absence of any competent evidence of a causal relationship, the benefit of the doubt doctrine is not applicable. The Veteran's claim for service connection for bladder cancer must be denied. See Gilbert, supra. 2. Entitlement to an initial rating in excess of 20 percent for a back disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b). If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (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." The spine has no opposite 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. 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. Here, the Veteran seeks an increased initial rating for his low back disability (degenerative disc disease of the lumbar spine.) Currently, a 20 percent rating is applied from November 3, 2004. This condition is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Accordingly, the Veteran's degenerative disc disease of the lumbar spine is evaluated under the rating criteria for lumbar strain as listed in Diagnostic Code 5237. An initial VA examination of the Veteran's spine was provided in October 2004. The Veteran reported that he injured his back in a fall during his active service and subsequently underwent a lower back surgery in 1989. The examiner observed the Veteran's posture was good, but he walked with a slight limp. Forward flexion of the lumbar spine to 45 degrees was noted "with complaint of pain." The examiner observed there was no functional loss due to pain. The Veteran reported he had difficulty with bending and lifting. Degenerative disc disease of the lumbar spine was confirmed by x-rays. There was no indication of lower extremity neurological deficiency. In December 2005, a second VA back conditions examination was provided. The examiner noted moderate daily low back pain with mild fatigue, decreased motion, and weakness. Pain and weakness were noted in the lower back and legs. The examiner observed lower extremity sensory impairment was due to diabetic polyneuropathy. The Veteran used a cane and was unable to walk more than a few yards. His posture and gait were normal. The examiner indicated ankylosis in "part of the thoracolumbar spine." However, he observed forward flexion to 45 degrees and additional movement in thoracolumbar extension, lateral flexion, and lateral rotation. The Board also notes, the Veteran reported decreased motion and painful motion. He did not report immobility or near immobility, including during flares. Thus, the notation of ankylosis in part of the thoracolumbar spine is in conflict with the Veteran's reported symptoms and the examiners other evaluations. This comment is not entitled to any weight. In July 2007, a VA rheumatology outpatient consult observed continuing reports of back pain. In March 2009, a VA pain medicine consult noted constant dull aching back pain in the left lumbar region. Pain became sharp with aggravation from prolonged sitting or standing, sleeping flat on his back, and lumbar flexion. With severe back pain, the Veteran noted a very transient sensation of pain into his lower extremities. He was unable to exercise due to back pain. June 2008 and August 2008 VA physical therapy notes document forward flexion to 45 degrees. August 2009 physical therapy notes also describe forward flexion as 75 percent of normal. May 2009 physical therapy notes describe trunk range of motion as improved and within normal limits. A February 2011 VA neurology examination described mildly decreased active range of motion with flexion to 90 degrees. Spinal movement produced moderate aching pain. April 2013 VA physical therapy notes show both full range of motion and 50 percent range of motion in flexion. VA treatment records also document multiple therapeutic spinal injections over the appeal period. The Veteran submitted a December 2013 VA back DBQ. The examiner diagnosed degenerative spinal arthritis and bilateral sciatic radiculopathy. He noted the Veteran's reports of constant low back pain which increased with periods of sitting and standing. He observed forward flexion to 45 degrees and muscle spasms and guarding, which did not result in an abnormal gait or spinal contour. A third VA back conditions examination was provided in February 2020. The examiner diagnosed degenerative disc disease of the lumbar spine. The Veteran reported progressive worsening back pain. At the time of the examination he described constant back pain with flare of increased pain. The flares occurred when he twisted "incorrectly." Flares occurred every two or three months and lasted for one or two weeks. During flares, the Veteran had difficulty walking. He was not currently taking medications or receiving treatment for his back condition. The Veteran reported he had difficulty bending, lifting, and doing normal activities. On initial range of motion testing, forward flexion was measured to 45 degrees. Pain was observed in all ranges of motion and with weight bearing. Pain contributed to functional loss. After three repetitive motions, forward flexion was reduced to 40 degrees. The examiner estimated that with repetitive use over time and during flares, forward flexion would also be reduced to 40 degrees. The Veteran's back disability interfered with his ability to sit and stand for extended periods of time. There was no ankylosis. The examiner found no signs or symptoms of radiculopathy. The examiner noted passive range of motion testing could not be safely performed and a non-weight bearing assessment was not applicable. This examination provided the evaluations required under Correia and Sharp. Over the appeal period, the Veteran has experienced back pain and weakness. He had difficulty bending, lifting, sitting, and standing. At times, the Veteran used a cane and walked with a limp. However, there is no evidence that forward flexion of his spine has been limited to 30 degrees or less, including during flares or with repetitive use over time. There is no credible indication of ankylosis or a limitation of function that approximates ankylosis at any time as the Veteran has been able to flex his spine to over 30 degrees throughout the appeal period. The preponderance of the evidence is against finding a rating in excess of 20 percent is warranted. The benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5010-5237, 4.3, 4.7. 3. Entitlement to an earlier effective date for service connection, prior to November 2, 2004, for degenerative disc disease of the lumbar spine Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Prior to March 24, 2015, VA defined a "claim" as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p) (2014); 79 Fed. Reg. 57, 696 (Sept. 25, 2014) (effective March 24, 2015) (eliminating the informal claims). An informal claim was defined as "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). Thus, the essential elements for a claim, whether formal or informal, were "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing" for the relevant time period for this appeal. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). An August 2018 rating decision effectuated the Board's June 2018 decision granting service connection for a back disability. This rating decision allowed service connection with effective date of November 2, 2004. Review of the claims file shows the Veteran submitted a written statement indicating he sought service connection for a lower back condition on July 19, 2004. Thus, an informal claim for benefits was submitted prior to November 2, 2004. VA treatment records document a diagnosis of degenerative disc disease prior to the submission of this statement. An effective date of July 19, 2004, for the grant of service connection for degenerative disc disease of the lumbar spine, is warranted. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.1(r), 3.400. REASONS FOR REMAND 1. Entitlement to service connection for diabetes mellitus, type II (DM), including as due to exposure to herbicide agents or to other environmental hazards, is remanded. A remand by the Board confers on a Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. If the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran seeks service connection for DM. He asserts service connection is warranted because he was exposed to herbicide agents at Guantanamo Bay, Cuba during his active service. Alternatively, he claims his DM was caused by in-service exposure to chemical toxins. In July 2014 testimony before the RO and in October 2017 testimony before the Board, the Veteran described being exposed to paint, paint thinners, caustic volatile organic compounds, and carcinogens in his duties aboard the U.S.S. Trenton. In June 2018, the Board remanded the claims and directed the RO to attempt to verify the claimed chemical and herbicide exposure following VA procedures. In November 2018, the RO contacted the Veteran and requested information about his claimed herbicide carcinogen exposure. This letter appears to be related to the claim of entitlement to service connection for bladder cancer, discussed above. It did not request any information related to the Veteran's claim that chemical exposures caused his DM. In February 2020, the Board remanded the claim again. The RO was directed to attempt to verify the claimed exposures to both herbicide and chemical agents. If the exposures were not confirmed, the RO was directed to enter a Formal Finding outlining the steps taken to assist the Veteran and to notify the Veteran of VA's inability to verify these assertions. In March 2020, May 2020, and June 2020 the RO sent letters requesting additional information from the Veteran as to his claimed exposure to herbicides. The letters did not include any request for information regarding chemical exposures related to the development of DM. The file includes additional development as to the claimed exposure to herbicide agent, including logbook entries, records research responses, and a January 2021 VA memorandum. The RO provided a February 2021 supplemental statement of the case (SSOC), detailing the steps taken to attempt to verify herbicide exposure and the reasons this exposure was not confirmed. The SSOC did not address the Veteran's contention that he was exposed to other chemical agents causally related to his DM condition. Thus, there has not been substantial compliance with the Board's remand directives. See Stegall, supra. 2. Entitlement to service connection for bilateral lower extremity radiculopathy, secondary to degenerative disc disease of the lumbar spine. Here, an October 2004 VA examiner observed no lower extremity neurological deficiencies associated with the Veteran's lumbar spine condition. In December 2005, a VA examiner noted lower extremity symptoms of paresthesias, leg weakness, and radiating pain. He attributed lower extremity sensory symptoms to diabetic neuropathy. However, it is not clear whether he attributed all lower extremity symptoms to diabetic neuropathy. In December 2013, the Veteran submitted a DBQ completed by a private physician which diagnosed bilateral sciatica. The physician who completed the DBQ observed a complete neurological examination had not been documented. In February 2020, a VA examiner documented reduced lower extremity strength, hypoactive knee and ankle reflexes, absent lower leg and foot sensitivity to light touch, and positive straight leg raising test results. However, he indicated there were no signs or symptoms of radiculopathy. Multiple conflicting medical evaluations of the Veteran's lower extremity symptomatology are of record. The Board finds a remand is necessary to obtain an opinion as to whether left or right lower extremity radiculopathy is diagnosed and, if diagnosed, whether it is attributed to the Veteran's service-connected low back disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to September 2,2010, is remanded The claim for TDIU cannot be determined at this time as it is inextricably intertwined with the claims of entitlement to service connection for DM and for bilateral lower extremity radiculopathy. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). The matters are REMANDED for the following action: 1. Attempt to verify the Veteran's alleged in-service chemical exposure under established VA procedures. This should include contacting the Veteran and requesting additional details as to the nature of the claimed chemical exposures and any medical research, literature, or opinions which indicate a link between the claimed in-service chemical exposure and DM. If the information provided by the Veteran indicates his DM may be associated with an in-service chemical exposure, obtain an etiology opinion to evaluate the claim. Then readjudicate the claim. If the exposure to chemicals, or evidence of a link between in-service chemical exposure and DM is not indicated, make a formal finding of the steps taken to assist the Veteran and readjudicate the claim. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's reported left and right lower extremity symptoms indicate a diagnosis of radiculopathy. The clinician must also opine whether any radiculopathy diagnosed is at least as likely as not proximately due to the Veteran's service-connected lumbar spine disability. (Continued on the next page) If the clinician determines an examination is necessary to provide the opinion, schedule an examination. The examination report must include a complete rationale for all opinions provided. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and explain why an opinion cannot be provided without resorting to speculation. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeanne Celtnieks 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.